The Court of Appeal has added another twist in the long-running saga of whether older employees have protection against unfair dismissal.

Under the Employment Rights Act, protection stops at 65 unless there is another, well-established retirement age in the profession or industry in which the employee works.

John Rutherford, a clothing worker from Essex, initially challenged the validity of this rule. He argued that because more men than women continued working past 65, then the denial of protection amounted to sex discrimination.

The employment tribunal agreed and took the view that Mr Rutherford had been unfairly dismissed. Unsurprisingly, the Department of Trade and Industry was most dissatisfied and appealed. It argued that there was no actual evidence of discrimination and that even if discrimination could be proved, it could be justified on objective grounds. The Employment Appeal Tribunal agreed and reversed the original decision

The Court of Appeal has now confirmed the Appeal Tribunal's ruling as correct, and as a result, those over 65 continue to have no legal recourse if they are unfairly dismissed. Neither, incidentally, do they have any right to a redundancy payment if made redundant after 65.

Age Concern, which estimated that as many as 500,000 over-65s might have benefited had the employment tribunal's original decision been reinstated, described the ruling as a kick in the teeth.

Employers may take some comfort from the Court of Appeal's decision, but before becoming too complacent should bear two points in mind.

Firstly, as the workforce gets older and people find that as a result of the pensions black hole they are having to work longer before they can afford to retire, the pressure on the Government to treat older workers in the same was as everyone else can only increase.

Secondly, specific rules prohibiting age discrimination are due to be introduced in 2006. They may well reverse the current position.

* Stephen Elliott is a solicitor in the employment team of North-East law firm Ward Hadaway. He can be contacted on 0191-204 4000 or by email at stephen.elliott@wardhadaway.com

Published: 21/09/2004