How will this affect employers?
The new coalition government looks set to abolish the DRA and therefore the current protection afforded to employers who wish to retire employees at 65 and avoid the risk of being accused of age discrimination.
If the new government proceeds with the removal of the DRA it is important to consider the practical effect this will have on employers.
The recent case of Martin & Ors v Professional Game Match Officials (Professional Game) is central to this issue. In accordance with their retirement policy Professional Game sought to retire Mr Martin at the age of 48. As they were not relying on the DRA of 65 they had to objectively justify his retirement. Unsurprisingly Mr Martin brought a claim for age discrimination on the grounds that forcible retirement at the age of 48 was discriminatory, and the Employment Tribunal agreed. They suggested that Professional Game could have sought to dismiss Mr Martin via performance management, if appropriate. The Tribunal also indicated that a retirement age of 48 could be justifiable, but that an employer would have to adequately demonstrate why they had selected the age of 48 as a retirement age.
It is now up to employers to question if and how they can justify a retirement age. If the government goes ahead with its plans to abolish the DRA employers will have to accept that forced retirement will no longer enable them to dismiss an employee without the risk of a claim for age discrimination. The alternative option is to manage their workforce by relying upon performance management procedures. Therefore if an employer wishes to justify a retirement age it will have to assess whether the same result would have arisen from a performance management procedure.
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