Prior to October 2006, all employees over normal retirement age (usually 65) did not have any rights in respect of unfair dismissal. For employees who were under this age (and had a year’s service), the employer has to show a “potentially fair reason” for dismissal before a dismissal could be found to be fair.

From the 1st October 2006, however, the Employment Equality (Age) Regulations provided that “retirement” was another potentially fair reason for dismissal and thus brought limited protection to employees over 65. Unlike other reasons for dismissal, however, an employer does not have to show that he went about things in a reasonable and fair manner, only that he went through the statutory procedure for retirement. I shan’t bore you with the details, suffice it to say that it involves notices, counter notice and hearings etc. But, once the procedure has been exhausted, an employee over 65 cannot complain to a Tribunal.

Client S was 66 at the time of his dismissal. For him, it was fortunate that his dismissal was in November 2006. He was called into a meeting with a moment’s notice, only to be told that, because of something he had said, his services were no longer required. Had his dismissal been two months earlier, there would have been nothing he could have done. As things stood, because the employer had not followed the retirement procedure, the dismissal was automatically unfair.

A claim was brought in the Employment Tribunal and a settlement was rapidly reached. Although, had the case gone to Tribunal, a finding of unfair dismissal would have followed, the amount of damages the client would have received is less clear. For example, if the client would not have worked much beyond his retirement age, a Tribunal would not award damages beyond this point.

As a footnote, Age Concern has mounted a legal challenge to the limited protection for older employees as being against European Law.