Discussions and comments at work about an employee's age and possible retirement can be non-discriminatory, but only if circumstances justify them.
A possible merger of four primary schools meant staff, including a 59-year-old head, might have to be redeployed or retire. This led to discussions and conjecture about the issue between her and other staff. The head was later dismissed for serious misconduct and a fundamental breakdown in trust and confidence.
She claimed age discrimination, relying on various comments made to and about her over the relevant period, including:
- a colleague asking if she planned to retire;
- a discussion with the chair of governors about retiring;
- a comment by the Senior Education Improvement Officer that 'too many people carry on after they should have retired';
- a comment by a school inspector that 'you could be at home with your little grandchildren';
- a comment in an email from the chair of governors to a School Improvement Partner pointing out her age;
- a statement during her misconduct disciplinary proceedings that she should 'acknowledge current philosophies and approaches to education'.
The tribunal ruled:
- 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 herself broached the question of retiring at one point;
- it was likely colleagues would ask questions about her plans because what she did could affect what happened to them.
In all the circumstances, referring to her age did not amount to 'less favourable treatment' as required by age discrimination law.
Employers should ensure any discussion with, or comments to or about, employees that refer to their age or retirement are justified by in circumstances, otherwise they could amount to age discrimination. If in doubt, take specialist legal advice.
Case ref: Mrs Miron Quick v (1) Cornwall Council and (2) the Governing Body of Manaccan Primary School, Truro Employment Tribunal on 2 October 2012, case number 1701914/2011