In the absence of any legislation against age discrimination, older employees face a problem when they're dismissed or made redundant at 65. They have, therefore, little or no chance (until legislation comes into force at the end of 2006) of bringing a successful claim against their employer. But it can - and does - happen in certain circumstances.
What does the law say about the normal retiring age?
Take a look at the case of Wall v British Compressed Air Society (IDS Brief 750), in which the Court of Appeal said that although he was 67, he could bring an unfair dismissal claim because he was still below his contractual retirement age of 70.
Mr Wall relied on the fact that the legislation (Employment Rights Act 1996, section 109) says that you're only barred from bringing an unfair dismissal claim if you've reach-ed the 'normal retiring age' by the date of termination, or you've reached the age of 65.
The difficulty, of course, is in establishing what the normal retiring age is. The House of Lords said (in Waite v Government Communications Headquarters) that it's either what is stipulated in the contract, or the age at which employees are, in fact, forced into retirement. That way, the Lords said, you ensure fair treatment between employees who hold similar positions to one another. But what happens when employees have no one to compare themselves with? What's the normal retiring age in that situation?
What did the tribunals say?
The tribunal decided that because Mr Wall had no one to compare himself with (he had been the director general of the Society), it couldn't establish a 'normal retiring age' for him. And as he was over the default limit of 65 that the legislation sets, he couldn't bring a claim.
The Employment Appeal Tribunal (EAT) decided, on the other hand, that because his contract stipulated 70 as his retirement age, then that was his 'normal retiring age'.
What about the Court of Appeal?
The Court of Appeal decided, on a majority, that the normal retiring age for someone in Mr Wall's unique position was what was stipulated in his contract - ie 70.
But what about the other cases that seemed to contradict this conclusion? First, the court said that the case of Waite didn't deal with the point as it was about a group of employees doing the same jobs. It also distinguished the case of Patel v Nagesan on the basis that Mr Nagesan did not have a contractual normal retirement age, and so would be set by statute.
So what does 'normal' mean?
The majority of the Court of Appeal decided that the word 'normal' in the legislation did not mean that there had to be more than one employee doing a particular job, in order to establish a 'norm'. Instead, it decided the phrase was just in the legislation to ensure that employees doing similar jobs were treated equally. It did not mean that an employee had to have a comparator.
It also said that, as set out in the case of Waite, the normal retiring age was basically the age at which employees could reasonably assume they would be made to retire. Someone who was holding a unique position should also be able to make that assumption, they said.
What was the end result?
The court has therefore established quite clearly that if an employee holds a unique position, as in the case of Mr Wells, he or she does not have to make a comparison with other employees to establish the normal retiring age. If the contractual retiring age is 70, then that's the age at which the person would normally retire.