Since the default retirement age was abolished in April 2011, employers have been left in an uncertain position where retirement is concerned. Asking an employee about their retirement plans could lead them to accuse you of discrimination – so what are employers supposed to do when they need to know?
This point was dealt with in the recent Employment Tribunal case of Quick v Cornwall Council and another.
In this case, Mrs Quick was headteacher at a primary school in Cornwall. The local council wanted to try and amalgamate several local schools to try to save costs, and this would have resulted in losing some teachers.
Mrs Quick had several periods of absence and some disciplinary allegations were made against her. A hearing took place and the school’s governors decided to dismiss her with notice on 19 July 2011 on the basis of her serious misconduct and because of an irretrievable breakdown in trust. She appealed against this decision, but was unsuccessful.
Mrs Quick then brought an Employment Tribunal claim. As well as unfair dismissal she brought in allegations of age discrimination, which she had not mentioned previously. She referred to colleagues asking her if she had any plans to retire, emails from the Governors where her age (59) was referenced, and other references to retirement such as “too many people carry on after they should have retired.” Many of the allegations had occurred back in 2008.
At the Employment Tribunal, they considered Mrs Quick’s claims. Her unfair dismissal claim was dismissed. In terms of her age discrimination claim, the Tribunal found the following:
- Given the planned amalgamation, it was sensible for the ages of current staff to be considered as part of succession planning. Mrs Quick had herself made informal enquiries about retirement.
- Discussions about potential retirement did not amount to less favourable treatment because there was no suggestion that retirement could be imposed.
- Mrs Quick had never complained or raised a grievance about the alleged age discrimination and her union representative admitted that the first he had known about her age discrimination claim was when he saw her Employment Tribunal claim form.
- The colleague who had asked about her retirement was doing so because her plans would affect his own career, and it did not therefore amount to less favourable treatment.
In the circumstances, the Employment Tribunal dismissed Mrs Quick’s claim for age discrimination. This case should therefore give some comfort to employers who want to raise this difficult issue with their employees. However, it is important to note that this case is Employment Tribunal level only, and therefore does not bind other Employment Tribunals – another Tribunal might decide the case differently. It also appears that the Tribunal were strongly influenced by Mrs Quick’s misconduct and the fact that she had not raised the issues previously.
Our Top Tips
In many workplaces, simply not addressing the question of retirement at all will lead to problems. For example, a bottleneck may build up where younger employees are waiting for an older employee to retire – if the issue is not discussed, it could cause resentment.
Employers are best advised to build discussions about every employee’s future plans into their appraisals – if you ask everyone about their future plans (e.g. “where do you see yourself in five years’ time?”) then it will not be discriminatory.
It is also a good idea to ensure that managers are trained on dealing with these issues and in particular that your equal opportunities training addresses retirement issues. If you need help with equal opportunities training, then please contact us.
The ACAS guide to Working without the default retirement age is very helpful and gives guidance on good and bad practice.
If you are having problems with retirement issues then we can help. Please call us on 01243 836840 for a no obligation chat or email us at [email protected].