Official figures show that the number of age discrimination claims brought against employers has plummeted over the past 12 months.
The latest figures from the Employment Tribunal show that there were just 3,700 age discrimination claims lodged against employers in 2011/12, compared with 6,800 for the previous twelve months - an all time high.
This dramatic fall coincides with the Government’s repeal of the Default Retirement Age (“DRA”).
Under the DRA provisions, an employer was able to dismiss any employee reaching the age of 65 (subject to compliance with some procedural steps). There was no requirement for there to be any fault or impropriety by the employee; otherwise capable and willing staff could find themselves lawfully dismissed simply for the fact they had reached a certain age.
The previously high number of claims may have been caused by large numbers of forcibly retired employees bringing misguided age discrimination claims as a result of their perceived unfairness over their retirement. With many employers complying with the retirement provisions in force, these employees’ claims would be certain to fail, but would still clog up the Tribunal system and cause employers to waste time and money responding to them.
Post DRA, employers are still able to operate their own retirement ages but the legal issues around this make it difficult. Some have taken the plunge and decided to create their own retirement age (typically higher than 65), but many are instead simply choosing to allow staff to simply carry on working for as long as they want. With the majority of retirements now voluntary and instigated at the employee’s request rather than the employer’s, it is perhaps no surprise that there has been such a large fall in age discrimination claims.
A permanent reduction?
The DRA allowed employers to remove employees before issues like performance became a problem. Now though, employers will have to take a more engaged role with their older staff and performance management procedures are sure to be tested.
In addition, those employers that have chosen to create their own, later, retirement ages (such as 67) are perhaps only putting off the inevitable. When any employee is retired against their wishes, they will find it unjust and could bring a claim. Employers in this situation will face the added problem of having to justify their choice of retirement age – something they did not previously have to do under the old DRA regime.
This lull in claims is perhaps only temporary. We may see the figures creep back up over the coming years.
Not just age discrimination claims falling...
The Employment Tribunal figures also show a 40% drop in the number of sex discrimination claims, whilst claims based on religion, belief or sexual orientation continue to remain low. There was also a fall in unfair dismissal claims.
In total, there was a fall of over 60,000 in the number of employment tribunal claims.
These figures will provide some cover to the Government. Whilst some reform of employment law and the tribunal system is both necessary and desirable, the Government will have an argument to resist the pressure from the business lobby to make reforms as radical as had been called for previously.