Legal Aspects of Business: Letter of Advice on Compulsory Retirement and Age Discrimination

This is a legal advice in context of the facts of the case apprised to us by you (Mr. John), our client. The situation revolved around the age discrimination laws applicable in UK. This is with reference to the facts of the case apprised to us by the client, Mr. John (the recipient). The analysis of the facts highlights the situation where the steps taken by the client, revolve around the age discrimination laws of UK.

RUNNING HEAD: ADVICING LETTER
Legal Aspects of Business
Letter of Advice

ADVICING LETTER
(Date)
Mr. John
Restaurant Owner
(# Address#)
Letter of Advice
Dear Mr. John
Re: Legal implication of compulsory retirement and age discrimination at office.
This is a legal advice in context of the facts of the case apprised to us by you (Mr. John), our
client. The situation revolved around the age discrimination laws applicable in UK. This is with
reference to the facts of the case apprised to us by the client, Mr. John (the recipient). The
analysis of the facts highlights the situation where the steps taken by the client, revolve around
the age discrimination laws of UK. This legal advice is focused on elucidating the best possible
course of action for the client, while dealing with their present employee, Mr. Williams, who is
approaching retirement age, but is not ready to retire. The letter would describe the reasons why
the given advice is in favor of client and would help in clarifying the negative repercussions of
not following the given advice, based on the applicable legislation.
Background
To safeguard and lawfully protect people from discrimination at the office and in broader
community, The Equality Act (EA) was introduced in 2010. It is a law that protects an individual
from discrimination. Discrimination on the basis of race, faith or belief, age, race disability, or
sex, all are covered under the act. Various provisions were introduced in this act that ban
discrimination against adults based on age at workplace. After the commencement of this act,
discrimination based on age was declared as unlawful unless; either the practice is subject to
certain exception from ban or excuse can be shown for such discrimination. The ban on
discrimination based on age is intended to guarantee that the new legislation only prohibits
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ADVICING LETTER
damaging treatment resulting in age- related truly unfair discrimination. The following case
study will describe about the laws relating to the age discrimination in UK, various acts passed to
abolish this practice, relevant case laws touching the point and Equality Act 2010.
Issue
The main issue in the present scenario is whether John can force William to resign from office
without his consent and will?
Rule
Age discrimination means to treat an employee less favorably due to his or her age. To prohibit
this practice of age discrimination against the persons who are above the age of 40, The Age
Discrimination in Employment Act was passed in 2010 (Wadham, et al., 2012). As per Section 5
of The EA 2010, one must not be discriminated against age because:
 One’s belong to or not to particular age
 Discrimination by perception i.e. Someone assumes that one is or is not a specific age or
age group
 Discrimination by association i.e. One is connected to someone of specific age or group.
Various previous statutes were amended as well as various changes were made in the previous
act regarding retirement and age discrimination (Hepple, 2014). Major changes in default
retirement age provisions are as follows:
 Para 8 of schedule 9 of the EA 2010 was repealed, which implies that, subject to
transition provisions, it is discrimination for an company to retire a worker who is 65
years of age or older.
 Different parts of Employment Rights Act, 1996 were modified to imply that retirement
is no longer a just ground for removal and thus section 98ZA-98ZH no longer applies to
assessing the fairness of dismissal.
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 In order to eradicate the obligation of companies to contemplate applications from staff
for post-retirement job, schedule 6 of Employment Equality (Age) Regulations 2006
(EEAR) was repealed (Rippon, et al., 2015).
These modifications imply that, unless the transitional regulations apply, any dismissal
that takes impact as of 6 April 2011 because of the employee whose age is 65 years or
older, is age discrimination unless the employer can objectively justify the choice as a
means of attaining a lawful objective (Sargeant, 2013).
The Equality Act, 2010 gave the right to the employees to decide at what age they want to retire
(Cotter, 2016). This act protects the employees from various discrimination that is direct
discrimination, indirect discrimination, harassment or victimization. Age discrimination is one of
the most usual forms of unfair treatment at workplace (Hepple, 2011).
In the case of Pitcher v University of Oxford & Saint John the Baptist College in the University
of Oxford: 3323858/2016, a professor at the university was compulsory retired irrespective of his
consent. The professor was nearly 67 years old, but he wished to work further (Anon., 2016).
The professor filed a suit against the Chancellor of the university and the College. The professor
gave the reference of Section 13 of the EA that he was treated unfairly. Further, he also stated
that as per Section 27 of Equality Act he was subject to victimization. The court held that the
dismissal of the professor was fair, as he did not meet the requirement of extension of his
extension under the policy (Butler, 2016).
In the case of Mr. J Peters v Rock Chemicals Limited t/a Rock Oil Company , 28 January 2016,
Case Number 2404460/2015, an employee of Rock chemicals was dismissed from his job, when
he was 67 years old (Anon., 2016). He was removed from the company on the grounds of
misconduct resulting in large fine. Mr. Peters filed a suit for biased removal, breach of agreement
and age discrimination against the company. The petitioner claimed that without giving prior
notice and information he was dismissed and stated that his employer asked him to retire at the
age of 65 years .The Company also hired applicant’s replacement. In this case the tribunal
upheld the petitioner’s claim of age discrimination. The court held that the applicant had been
unethically rejected and upheld his claim of breach of agreement in connection with his notice
pay. The court further dismissed the counter claim of Rock chemicals (Turner, 2013). Unfairly
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ADVICING LETTER
In Engel v Transport and Environment Committee of London Council [2008] IRLR 258, 26
April 2013, Mr. Engel was an employee of the Transport an Environment Committee of
London Council, he worked there as a parking adjudicator. The normal age of retirement for
an adjudicator was 70 years. The council appointed three more adjudicators who were
younger than the applicant was, for 5-year terms. The applicant sued the council on the
grounds of direct age discrimination. The court affirmed the applicant’s claim. This case
attracted the provisions of Equality Act. It was argued on behalf of the respondent that such
age discrimination was justifiable. The court accepted the aim of TECLC of independence,
but stated that the respondents failed to provide adequate proof to show that it met its goal to
impose a pension age of 70 and that there were no less discriminatory techniques that could
also fulfill its goal. The court awarded compensation to the applicant (Hills, 2013).
In Compass Group plc v Ayodele [2011] IRLR 802, the employer of applicant informed him
of his intentions to retire at the age of 65and that he was entitled to an extension. The
applicant asked to work after his retirement but without assigning any reason his request was
declined. He further raised the matter but it was also declined. Finally, applicant sued the
company for age discrimination and unfair dismissal. In this case the court held that an staff
asked to be in employment beyond the age of 65 must be considered ‘in good faith’ and that
an company cannot depend on a comprehensive policy of wanting staff to retire on attaining
the age of 65; even though policy is adequate( which is permissible in itself), it should address
applications to grant permission to carry on working with an broad mindset. The court further,
uphold the claim of applicant that he was unethically fired on the ground that the company did
not give any real thought to the application to work after 65 and was thus in violation of their
commitments under paragraphs 7 and 8 of Schedule 6 of the employment Equality ( Age)
Regulations 2006 (McColgan, 2014).
In Seldon v Clarkson Wright and Jakes (2012) UKSC 16, the applicant in a partnership firm
was retired compulsory at the age of 65 in consonance of partnership agreement. The firm
affirmed that this was straight age discrimination but argued that it could be defensible as a
source of attaining different valid goals. The goals that were accepted as fair by the
Employment Tribunal were; after a reasonable period, guaranteeing that companions were
given the chance of partnership, restricting the need to dismiss partners through performance
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ADVICING LETTER
leadership, thereby contributing to the company’s amiable and helpful culture. The applicant
with the support of Equality and Human Rights Commission appealed in Supreme Court. The
Supreme Court although rejected the appeal of applicant but it did set out a couple of
significant principles, especially for private organizations, about explanation of direct age
discrimination. The court held that the ultimate goal must be based on “social policy
objectives” like those, which are related to employment policy or professional training. It
means that nature of the goals must be of public interest instead of purely individual reasons
especially to one employer’s situation (Doyle, 2010).
Application
In the present situation, since Mr. Williams is not willing to retire so he cannot be forced to retire
against his will. If you force Mr. Williams to retire then it will attract the provisions of EA. This
act safeguards the interest of people who have been discriminated against on the basis of their
age. Prior to EA you might were allowed to dismiss Mr. Williams or to force him to retire.
However, by the commencement of this act discrimination based on age and compulsory
retirement was prohibited. Para 8 of Schedule 9 of this act was removed which implies that if any
employer force worker to retire then it will be treated as age discrimination. Furthermore, various
parts of this act were amended for example, it was declared that retirement is no longer a
reasonable ground for removal hence Section 98ZA- 98ZH were repealed. Lastly, In order to
remove company’s responsibility to consider post- retirement work requests, Schedule 6 of the
EEAR has been repealed. These changes in act made the laws relating to retirement more
stringent (Sargeant, 2016)
As in the case of Mr. J Peters v Rock Chemicals Limited Ta Rock Oil Company, an worker
was fired unfairly although on the basis of misconduct, still the court upheld the applicants
claim and held that he has been dismissed unfairly. Similarly, without proper grounds and
evidence employer cannot dismiss or force an employee to retire without his consent (Glover
& Branine, 2017). You have only perception about the productivity of Mr. Williams and there
is no such strong evidence, which can be shown as reason for dismissal, so you cannot force
him to retire on mere perceptions of yours.
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ADVICING LETTER
As in case of Engel v Transport and environment Committee of London council, the applicant
sued the company on the grounds of age discrimination, the court awarded the compensation
to him and upheld his claim (Manfredi & Vickers, 2016). Likewise, if you force your
employee i.e. Mr. Williams to retire without strong evidence then it is quite possible that court
may impose fine or you are ordered to pay compensation to Mr. Williams. In case if, you
dismiss Mr. Williams on the ground of less productivity without any proof then there may be
possibility that Mr. Williams may file a suit against you on the basis of age discrimination,
and to establish your case you need strong evidence to show the same.
As in case of Ayodale v Compass Group, the applicant wanted to work further even after
attaining the of 65 years and requested to work further but his request was denied and court
held defendant liable for discrimination based on age. Similarly, Mr. Williams is not willing
to retire, we wants to work further and has expressed his intention for the same, to reject his
request there must be strong reason for denial and you cannot decline his request merely on
perception of yours. In case you decline his request without any clarification or reason, it will
attract the provisions of EEAR (McGoldrick & Arrowsmith, 2017).
As in Seldon v Clarkson Wright and Jakes, the court stated that goals or aims of the firm must
be of public interest in nature rather than based on specifically individual reason especially to
one employer’s situation. Likewise, you cannot compulsory retire Mr. Williams as it will be
treated as direct age discrimination.
In certain circumstances an employer can force a worker to retire or can dismiss him from
company but for that there must be strong evidence and reason for such dismissal. The main
reason of dismissal can be misconduct on part of an employee or that he is unable to meet the
requirement of extension as laid down in the policy of company. As in case of Pitcher v
University of Oxford & Saint John the Baptist College in the University Of Oxford , the
applicant gave the reference of Section 13 of Equality act but still court dismissed his claim.
If there is as any extension policy of your restaurant, which contains basic requirement to be
fulfilled by Mr. Williams, and if he fails to meet such requirement then it can be a ground of
his dismissal or compulsory retirement.
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ADVICING LETTER
Conclusion
Our suggestion for you is that while dealing with employees, laws relating to the workers has to
be kept in mind. There should be no violation of rights of employees as Equality Act 2010
protect and safeguard the interest of workers. It states that there must be no discrimination based
on age or perception. In your scenario, you merely have perception regarding productivity of Mr.
Williams, there is no solid evidence, which can be shown to prove your point or which shows the
performance of Mr. Williams during last year, and hence you cannot force him to retire against
his will. If he fails to meet the requirement of restaurant’s policy (if any) then only you may
force him to retire. If you still dismiss him or force him to retire then it may be treated as direct
discrimination and it is quite possible that Mr. Williams may bring a lawsuit against you.
If you have any concerns or questions about the advice provided or any associated matter, kindly
do not hesitate to contact us or call our office.
Yours sincerely,
(#Your name#)
Bibliography
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ADVICING LETTER
Anon., 2016. Agediscrimination.info. [Online]
Available at: https://www.agediscrimination.info/case-reports/2016/1/28/peters-v-rock-
chemicals-ltd?rq=Mr.%20peter%20
[Accessed 21 July 2019].
Anon., 2016. AgeDiscrimination.info. [Online]
Available at: https://www.agediscrimination.info/case-reports/2019/5/16/pitcher-v-university-of-
oxford
[Accessed 21 July 2019].
Ayodele v Compass Group [2011] UKEAT 0484_10_1407
Butler, M., 2016. Equality and Anti-Discrimination Law: The Equality Act 2010 and other anti-
discrimination protections. London: Spiramus Press Ltd.
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Engel v Transport and Environment Committee of London Council, London Central
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on-Thames: Routledge.
Hepple, B., 2014. Equality: The Legal Framework. 2 ed. London: Bloomsbury Publishing.
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Hepple, B. N. L. F., 2011. Equality: The New Legal Framework. London: Hart Publishing.
Hills, G., 2013. The Equality Act for Educational Professionals: A simple guide to disability
inclusion in schools. Abingdon-on-Thames: Routledge.
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McColgan, A., 2014. Discrimination,Equality and the Law. London: Bloomsbury Publishing.
McGoldrick, A. & Arrowsmith, J., 2017. Discrimination by age: The organizational response. In
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Mr. J Peters v Rock Chemicals Limited t/a Rock Oil Company, 28 January 2016, Case
Number 2404460/2015
Pitcher v University of Oxford & Saint John the Baptist College in the University of Oxford:
3323858/2016
Rippon, I., Zaninotto, P. & Steptoe, A., 2015. Greater perceived age discrimination in England
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Sargeant, M., 2016. Age Discrimination: Ageism in Employment and Service Provision. Florida:
CRC Press.
Seldon v Clarkson Wright and Jakes (2012) UKSC 16
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Turner, C., 2013. Unlocking employment Law: Unlocking the Law. Abingdon-on-Thames:
Routledge.
Wadham, J. et al., 2012. Blackstone's Guide to the Equality Act 2010: Blackstone's Guide. 2 ed.
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