This case features a creative argument that a requirement that staff demonstrate "something extra" was age discrimination, and so the forced retirement of a 65 year old did not fall within the scope of the Default Retirement Age.
Facts
Mrs Duggan brought a direct and indirect age discrimination claim on the basis of her retirement. The London Borough of Hounslow had adopted the default retirement age (“DRA”) and so routinely retired employees when they reached the age of 65. However, employees would be permitted to stay on if they could show that they brought “something extra” to the organisation.
Mrs Duggan argued that this requirement to demonstrate “something extra” was direct and indirect age discrimination and, as her claim only partially related to the DRA, her dismissal would not be covered by the exemption in Regulation 30.
Decision
The Tribunal found that it had no jurisdiction to hear a claim for direct and indirect age discrimination arising from a requirement that employees bring “something extra” to the organisation in order to be granted a request to work beyond 65.
The Tribunal commented that there could be many possible acts during the retirement dismissal process which could amount to free standing allegations of discrimination and which would not be caught be Regulation 30. An example might be if, during the meeting to consider the employee’s request to continue working, an individual is abused or ridiculed on grounds of age, or if very disparaging remarks were made about older people generally. In this case, there was no suggestion by Mrs Duggan that the “something extra” criterion was offensive.
The Tribunal found that the reason for Mrs Duggan’s dismissal was retirement, and the claim relating to the “something extra” allegation was inextricably linked with the dismissal. The Tribunal found that Mrs Duggan’s allegation was an attempt to circumvent Regulation 30 and her allegation was a component part of what was, in reality, an unfair dismissal claim relating to her retirement.
The Tribunal therefore dismissed Mrs Duggan’s age discrimination claims.
The judgment is available here.
Mrs K Duggan v The Mayor and Burgesses of the London Borough of Hounslow, London South Employment Tribunal case number 2331589/2009