One Day Early is Discrimination

Since the introduction of the Employment Equality (Age) Regulations 2006, the enforced retirement of an employee who is below the age of 65 has generally been unlawful, unless it can be objectively justified. The Regulations provide for a default retirement age of 65 (Regulation 30), provided certain conditions are met. These include giving employees at least six months’ notice, in writing, of their intended date of retirement and notifying them that they have the right to request to continue working beyond either the default retirement age or the normal retirement age set by the employer. Employers have a duty to consider such a request.

In Plewes v Adams Pork Produce Ltd. (Adams), the employer’s failure to comply precisely with the Regulations has proved to be an expensive error. Mr Plewes’s contract of employment clearly provided that the normal retirement date for all employees was the day before the employee’s 65th birthday. Mr Plewes was notified of his retirement date and he put in a request to carry on working, but Adams turned this down. He was therefore retired on the day before his birthday, although a few weeks later he was back doing his old job, this time through a recruitment agency, on a lower salary than before.

Mr Plewes brought a claim against Adams for discrimination on grounds of age and unfair dismissal. The Employment Tribunal (ET) held that Adams could not rely on the default retirement exemption because Mr Plewes was required to retire before his 65th birthday. In the absence of any objective justification for a retirement age lower than the default age, his dismissal was judged to be discriminatory on the grounds of age and also unfair. Because of Adams’ mistaken belief that it could retire Mr Plewes on the date specified in his contract, the company had not followed the statutory dismissal procedures. As a result of this failure, the ET applied a 50 per cent uplift to the compensation awarded, bringing the total to over £36,000.