A recent employment tribunal decision that the enforced early retirement of longer serving West Midlands’ police officers was unlawful discrimination is highly significant. Some reports have estimated that the judgment, unless reversed on appeal, could result in a £15m bill for West Midlands Police to cover claims for age discrimination and legal costs.
But the ruling and its consequences have also come as a timely warning to the region’s businesses as well as public sector organisations, according to Darryll Thomas, a specialist employment lawyer at the Solihull office of The Wilkes Partnership.
“Forcing anyone to retire on grounds of age has been outlawed since 2006 and, since a further tightening in the law two years ago, employers have not been permitted to enforce retirement at any particular age in normal circumstances, unless they can demonstrate a level of justification.
“This has had a significant impact, especially as more and more older workers have carried on working beyond what would once have been considered to be ‘normal’ retirement age, whether to boost inadequate pensions or out of choice” he said.
“Employers can still take actions which could lead to the departure of older employees but only on similar grounds that would apply to younger workers – employers have to tread very carefully.
“For example, selection for redundancy has to be made following a proper evaluation and not be related to age, which could include using length of service as a selection criterion.
“Disciplinary action can be taken against older workers where they fall short or where the physical requirements of the job are too challenging. But great care is needed to demonstrate that there has been no discrimination or any action taken is legally justified”.
The lesson of the use of “A19”, which was used to force police officers below the rank of chief officer to retire after 30 years’ pensionable service in the interests of ‘efficiency’, is a salutary one according to Mr Thomas.
“Sometimes businesses or organisations have to make cut backs but anything which smacks of ageism should be avoided. Substantial amounts of compensation can be awarded by tribunals where discrimination is proved.
Decisions should be made using appropriate and non-discriminatory criteria, which need to be documented and fully understood by directors and managers” he said.