The Government has announced there will be no legislation outlawing age discrimination in employment, but a voluntary code of practice. In the absence of specific age discrimination legislation sex discrimination has been used successfully in one Industrial Tribunal to challenge a normal retirement age of 65 (Nash v Mash/Roe Group Limited).

Under Section 109 (1) of the ERA the right not to be unfairly dismissed does not apply to the dismissal of an employee if on or before the effective date of termination she/he has obtained:

(a) In a case where: 
(i) In the undertaking in which the employee was employed there was a normal retiring age for an employee holding the position held by the employee and, 
(ii) The age was the same whether the employee holding that position was a man or a woman,that normal returning age and 
(b) In other cases, the age of 65.

There are almost identical provisions concerning the right to a redundancy payment (Section 156 (1) ERA).

Mr Nash was 69 when he was dismissed after he had been off work following an injury to his leg. There was no normal retirement age applicable and therefore the default age of 65 came into play.

At the Tribunal Mr Nash produced statistics showing the number of men and, separately, women over the age of 65 who are economically active.

The Tribunal found on the basis of the statistics that there is indirect discrimination against men - there is a disproportionate effect and considerably more men than women are excluded from unfair dismissal rights and the right to a redundancy payment than women.

The Industrial Tribunal took the unusual step of inviting the Secretary of State for Trade and Industry for representations as to the social policy implementations justifying the default retirement age of 65, but the Government did not make any representations. 
The employers were not in a position to know the Government's thinking behind the legislation and therefore no objective justification had been made out in the case.

The Tribunal held that both redundancy payments and unfair dismissal compensation were classified as pay under Article 119. By directly applying Article 119 of the Treaty of Rome they disregarded the domestic legislation as it was incompatible with European anti-discriminatory legal obligations.

The case is almost certain to be appealed, but in the meantime consideration should be given to lodging claims for those over the normal retirement age. Where the default retirement age of 65 applies the national statistics provided in Nash can be relied on to demonstrate a disproportionate adverse impact on men.

Where a lower retirement age applies, it will be necessary to obtain statistics from the individual employer in relation to the gender of the workforce over the relevant age. If these show indirect discrimination, the onus shifts to the employer to demonstrate objective justification for the retirement age policy.