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Case law: Employers should avoid discussing an employee's age and retirement unless circumstances justify it

Employers should take care to minimise the risk of potential age discrimination claims by not discussing an employee's age and possible retirement unless justified in the circumstances.

Legal Alert

This update was published in Legal Alert - April 2013

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

In a recent case involving a proposed primary school merger, staff including a 59-year-old head might have to be redeployed or retire.

Discussions about the issue between the head and other staff resulted, and she was dismissed for serious misconduct and a fundamental breakdown in trust and confidence. She unsuccessfully claimed age discrimination.

Her reliance on various comments made to and about her in relation to her age, retirement and grandchildren in support of her claim was not accepted. The tribunal ruled that some comments were made against a background of the possible merger so that it was sensible to have discussions about succession planning and retirement.

Some comments would also have been made to a younger employee, so were not age-related. She had also personally broached the question of retiring at one point. Furthermore, it was likely colleagues would ask questions about her plans because what she did could affect what happened to them.

In the circumstances, referring to her age did not amount to 'less favourable treatment' as required by age discrimination law.

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