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Employers must shed 'ageist assumptions' as default retirement age is scrapped

17 January 2011

Ignoring pleas from employers, the government has confirmed that the default retirement age (DRA) will be consigned to history from October this year.

Rachel Dineley, partner at national firm Beachcroft, called on employers to shed any “ageist assumptions” as they dealt with the challenges of an older workforce.

“There are a good many positive steps that can be taken, but they will require commitment and resources which some employers will struggle to give,” she said.

“A key concern raised by the CBI was how an employer can manage an employee whose performance has started to decline – this will require careful management on the part of the employer.”

Dineley said that, while ACAS has produced guidance, the reality was that managers would need support and training.

“No ageist assumptions should be made along the way,” she added.

James Davies, joint head of employment at Lewis Silkin, welcomed the end of the DRA.

“It was an anachronism that employers could require people to stop working at 65, purely because of their age,” he said.

“Employers should think of having a much older retirement age – 70 or 75.”

Ministers announced last week that employers would no longer be able to issue compulsory retirement notifications under the DRA procedure from 6 April 2011.

Between 6 April and 1 October this year only people who were notified before the April cut-off date can be compulsory retired.

From 1 October 2011 employers will only be able to operate a compulsory retirement age where they can objectively justify it as a ‘proportionate means of achieving a legitimate aim’.

At the same time, the government published new ACAS guidance and further ‘age positive’ guidance about the benefits of older workers. It has also promised to allow employers to retain a cut-off date for risk-insured benefits.

The government promised to abolish the DRA last August (see Solicitors Journal 154/30, 3 August 2010).

The move came as Countryfile presenter Miriam O’Reilly won the first high-profile age discrimination victory against the BBC. Her claims of sex discrimination were dismissed.

O’Reilly, 53, claimed that she had been unfairly dropped from the rural affairs show when it moved to a primetime slot on Sunday evenings in 2008.

Following her decision to launch legal proceedings against the BBC, she said the corporation offered her very little other work as a presenter.

One of the few jobs she was offered was an episode of the Radio Four series Costing the Earth on the ‘environmental cost of ageing’.

Employment judge Tayler at Central London employment tribunal said the discrimination against O’Reilly was not justified.

“The wish to appeal to a primetime audience, including younger viewers, is a legitimate aim,” he said. “However we do not accept that choosing younger presenters is required to appeal to such an audience. It is not a means of achieving that aim.”

Judge Tayler said the tribunal rejected the argument that O’Reilly had been a victim of both age and sex discrimination because she would not have been retained if she was a man of the same age.

He said that if she had been a man the “element of comparative youth” required by the second-tier presenters on the show would have been missing.

The judge said the decision to offer O’Reilly a radio programme on the ‘environmental cost of ageing’ was deliberate.

Camilla Palmer, partner at Leigh Day & Co, acted for O’Reilly. “This has huge implications for all broadcasters not just the BBC,” she said. “The lesson is that presenters should be selected for their ability, not their age.”

The BBC apologised to O’Reilly and said it would like to discuss working with her again in the future.

Laurie Anstis, solicitor at Boyes Turner in Reading, said: “Legally speaking there is nothing new in the judgment. The tribunal was applying well-established principles of law.

“It will make a difference to the extent that it has attracted so much publicity. This will put it uppermost in people’s minds, especially in the curious area of performers/presenters.”

Anstis added that since O’Reilly was a freelancer and not an employee, she could not have claimed unfair dismissal.

Robert Riley, partner at Addleshaw Goddard, said he was surprised O’Reilly had succeeded on age rather than sex.

“There was no obvious killer point that indicated age rather than sex,” he said. “It seems that the BBC does not treat older women as it should do.”

James Townsend, partner at BP Collins, said that had the recruitment process for the revamped Countryfile been more transparent it would have been easier for the corporation to argue that it had used a ‘proportionate means of achieving a legitimate aim’.

Countryfile had an image of an older person’s programme. It was legitimate to revamp it for primetime and bring in more popular presenters.”

He added that age discrimination was being taken “more seriously” in the workplace and that “eyebrows would be raised”.

In a separate development, The Daily Telegraph has reported that prime minister David Cameron is to give employers more protection from unfair dismissal claims by reducing the qualification period from two years to one.

An ‘employer’s charter’ would introduce fees for claimants at employment tribunals, while small firms could be exempted completely from certain legal obligations.

The prime minister has also suggested tightening up the laws on industrial actions in advance of an anticipated wave of strikes against the government’s spending cuts.

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