Mandatory retirement ages - referral to ECJ

Following our update on 6 October reporting that the Employment Equality (Age) Regulations 2006 (the Regulations) would be subject to judicial review, we can confirm that the matter has now been referred to the European Court of Justice (ECJ).

Heyday, a member organisation for people approaching retirement, applied to the High Court for judicial review of the new legislation on the basis that the decision to permit mandatory retirement ages forced workers into retirement. The High Court referred the case to the ECJ.

The referral is unlikely to have an immediate impact on private employers, although if the ECJ finds the Regulations unlawful, employers would have to manage without a retirement age. The referral does, however, have major implications for public sector organisations, according to the Employers Forum on Age. As a public sector organisation will be an "emanation of the State", its employees will be able to rely directly on the EC Directive outlawing age discrimination legislation, and could argue that tribunals should disapply provisions of the Regulations which are inconsistent with community law. The challenge is clearly of great significance to the future of this new legislation but it may be some 18 months before we receive a ruling from the ECJ.

Click here to read more about Heyday's challenge and here to access the EFA's press release.

Statutory dismissal and disciplinary procedures

In the recent case of YMCA Training v Stewart, the EAT provided some useful guidance for employers on fulfilling the requirements of the statutory dismissal and disciplinary procedures.

The EAT said that a manager's letter to an employee about her conduct was sufficient to meet the requirements of step 1 of the statutory procedure (i.e. that the employer should provide a written statement setting out the alleged conduct, characteristics or other circumstances which led it to contemplate dismissing or taking disciplinary action against the employee).

It was deemed acceptable to provide this information in headline terms. The letter did not need to be disregarded, as was the employment tribunal's position, just because it was sent prior to an investigatory meeting, and no further letter was sent prior to the later disciplinary meeting. The EAT commented that it was crucial for tribunals "not to be distracted by the fact that the parties may have been following an internal procedure with more elaborate requirements and different terminology from those required by the statute." Tribunals should look beneath the parties' own labels and focus on whether the substantive requirements of the statute were or were not in fact met. All that is required is a letter containing the statement of the alleged conduct and an invitation to a meeting to discuss the matter, and these requirements were met. The EAT noted that it was irrelevant how the letter and the meeting may have fitted in to the employer's own procedure.

The EAT also examined section 98A(2) of the Employment Rights Act 1996. This provides that an employer's failure to follow a procedure (such as the employer's disciplinary policy) when dismissing an employee will not itself make the employer's actions unreasonable if it can be shown that the employee would have been dismissed fairly if the procedure had been followed. The EAT noted that this provision should be interpreted widely, embracing other procedures, such as the ACAS code, which the employer ought to have followed before deciding to dismiss the employee (except the statutory procedure itself).

Dispute resolution - under review

As reported in our update on 17 November, Alistair Darling has launched a "root and branch" review of dispute resolution in the workplace.

This review will be welcomed by employers and employees, and will aim to simplify and improve all aspects of the statutory disciplinary and grievance procedures, examining aspects of the current system, present legal requirements and the scope for new initiatives. Recommendations for change should be made in Spring 2007.

Click here to access the DTI press release.