ROBERTS & CO LTD

Roberts & Co Ltd

Roberts & Co Ltd

Introduction

Employees have statutory protection against being unfairly or constructively dismissed. If an employer acts unreasonably so as to force an employee to resign, that employee may well have a case of constructive dismissal, however, the act of resignation must be the only possible action left having exhausted all others. Ultimatums such as 'resign or be dismissed' which result in resignation are an example of constructive dismissal. (Willey, 2003, 7) An actual dismissal or act to cause resignation must have taken place for a claim to be made.

With the exception of cases of automatic unfair dismissal, an employee must have a minimum of one years continuous service and be under either the contractual retirement age or under 65 years old to make a claim. There may be a claim for breach of contract in these circumstances.

Does Mark Williams have any right to remain in employment beyond his 65th birthday and, in the event that he is forced to retire at 65, can he make any claim against R&C?

Age Concern and Heyday have been granted leave to judicially review the government on the default retirement age of 65 in the Employment Equality (Age) Regulations 2006. The basis of the claim is that by setting a default retirement age and excluding people over 65 from employment protection, the government has failed to implement the EU Employment Directive (2000/78/EC) in breach of their obligations under European law.

On 6 December 2006 the High Court decided in the case of R (on the application of) The Incorporated Trustees of The National Council for Ageing -v- The Secretary of State for Trade and Industry CO/5485/2006 that the case be referred to the European Court of Justice. If the challenge is successful, forced retirements of teachers from 1 October 2006 (Toman, 2005, 4) when the regulations came into effect - may be deemed to be unlawful.

Members who are forced to retire after the age of 65 will need to protect their right to take an unfair dismissal and age discrimination claim in the event that the challenge is successful.

Steps to be taken

Mark Williams should be advised not to proceed with compulsory retirements pending the outcome of the judicial review.

Mark Williams should be advised that he may lodge a request to continue working beyond the retirement date where he has received a notice of retirement under the statutory retirement procedure. Some employers might proceed to dismiss at or over the age of 65 on grounds of retirement against those employers wishes. Caseworkers should explain the following to Mark Williams:

the default retirement age introduced by the government is being challenged in the European Court of Justice;

the lawfulness of the dismissal will not be certain until the matter has been heard by the ECJ and the matter determined by the High Court, this is likely to take several months;

Mark Williams may lodge a protective application to the employment tribunal for unfair dismissal and unlawful age discrimination, pending the outcome ...