1. Something Old Something New
Employment Law workshop
December 2010

2. Removal of the
Default Retirement Age (DRA)
Vicky Schollar

3. Background
Employment Equality (Age) Regulations 2006 (“the
Regulations”)
Now the Equality Act 2010 – para 8 Schedule 9 – still
lawful to retire employees at 65
Statutory Retirement Procedures

4. Proposals
Why remove the DRA?
Consultation ended October 2010
Response to consultation imminent
Key Proposals
– Removal of DRA
– Removal of retirement procedures
– Transitional provisions - April to October 2011

5. Transitional Arrangements
Compulsory retirements that have been notified
before 6 April 2011 to take effect before 1 October
2011 are valid
Compulsory retirements notified before 6 April 2011
to take effect after 1 October 2011 will not be valid
No new notices of intended retirement (including
short notices) may be issued after 6 April 2011

6. Going Forward
No DRA means:
– No longer potentially fair reason for dismissal
– Employers can still have compulsory retirement ages
– Compulsory retirement ages will need to be objectively
justified
“Proportionate means of achieving a legitimate
aim”
Compulsory retirement ages – what to consider

7. Insured benefits
Life assurance
Medical cover
Income protection schemes (eg PHI)
Critical illness cover
Employee Share Schemes – good and bad leavers

8. Seldon v Clarkson Wright and Jakes and anor
EWCA 2010
Partners in law firm required to retire at 65
Legitimate aims:
– Giving senior solicitors opportunity for partnership
– Facilitating partnership and work force planning
– Limiting need to expel Partners by way of performance
management thus maintaining a congenial culture
Held: Objectively justified

9. Hampton v Lord Chancellor and anor 2008
Judicial office of Recorder
Retirement at 65
Justification:
– Reasonable flow of new appointments and candidates
for full time judiciary posts
– Presence of Recorders aged 65- 70 prevents
recruitment of younger Recorders
– Presence of Recorders aged over 65 meant there were
fewer challenging cases for those in the pool for
appointment
Held: not objectively justified

10. Rosenbladt, ECJ 2010
Employment terminated when the employee could
claim a statutory pension, age 65
ECJ held that the contractual retirement age of 65
was justified
German Government had legitimate aims of:
– sharing employment between generations
– avoiding capability dismissals
Proportionate because:
– employee had a replacement income
– agreed as part of a collective agreement

11. Petersen, ECJ 2010
Age limit of 68 for dentists in German national health
service
Legitimate aim:
– to protect patients against declining performance of
older practitioners
Held: Not objectively justified

12. Advantages
Retain experience
Retain knowledge
Retain skills
Demonstrates equal opportunities
Improved attitude towards older workers
Lower labour turnover
Decreased sickness absence

13. Disadvantages
Fewer opportunities for career
development/employment for new/younger
employees
Capability issues
Ongoing funding of pensions/benefits
Difficulties in succession planning
Less natural wastage
Increased sickness absence

14. The Equality Act 2010
Debbie Sadler

15. The Equality Act 2010
Purpose
– to harmonise anti discrimination law
– to strengthen the law to support progress on equality
When
– received Royal Assent 8 April 2010
– core provisions from 1 October 2010
Equality and Human Rights Commission – guidance
(statutory and non statutory)

16. The Equality Act 2010
Protected Characteristics
– age
– disability
– gender reassignment
– marriage and civil partnership
– pregnancy and maternity
– race
– religion or belief
– sex
– sexual orientation

17. The Equality Act 2010
Direct Discrimination
– A discriminates against B if, because of a protected
characteristic, A treats B less favourably than A treats
or would treat others.
– discrimination by association/perception
– (dual discrimination)

18. The Equality Act 2010
Indirect Discrimination
– A applies a provision criteria or practice (PCP) to B
– A applies or would apply the PCP to persons with
whom B does not share the relevant protected
characteristic
– the PCP puts or would put persons with whom B shares
the characteristic at a particular disadvantage when
compared with persons with whom B does not share
the characteristic
– the PCP puts or would put B at that disadvantage and
– the PCP is not a proportionate means of achieving a
legitimate aim
– Extended to disability and gender reassignment

19. The Equality Act 2010
Harassment
– A harasses B if A engages in unwanted conduct
relating to a relevant protected characteristic which has
the purpose or effect of violating B’s dignity or creating
an intimidating, hostile, degrading, humiliating or
offensive environment for B
– by third parties
– no need to possess protected characteristics
(associative and perceptive)

20. The Equality Act 2010
Victimisation
– removes need for absolute comparator
– A victimises B if A subjects B to a detriment because
B does a protected act or
A believes that B has done or may do a protected
act
Instructing or Causing Discrimination
– unlawful to instruct/induce discrimination, harassment
or victimisation or to attempt to do so
– extends protection to all protected characteristics

21. The Equality Act 2010
Disability Discrimination
– normal day to day activities
8 functions removed
– associated/perceived discrimination
– indirect discrimination
– discrimination arising from disability
A discriminates against a disabled person, B, if A
treats B unfavourably because of something arising
in consequence of B’s disability and A cannot
objectively justify the treatment

22. The Equality Act 2010
– duty to make reasonable adjustments
PCP or physical feature
provision of auxiliary aid
– pre employment medical questionnaires
comply with requirement to undergo assessment
reasonable adjustments
intrinsic to role
to monitor diversity
to take positive action
genuine occupational requirement

23. The Equality Act 2010
Equal Pay
– (publication of pay differences)
– pay secrecy clauses
potentially unenforceable
victimisation

24. The Equality Act 2010
Practical steps
– Equal Opportunities Policy
– Harassment Policy
– Training for Staff and Managers
– Review procedures (recruitment)