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Retire Quickly

Meredith Hurst Thursday, January 17, 2013

In Quick vCornwallCouncil & another,an Employment Tribunal considered claims of unfair dismissal and age discrimination based on conversations and comments about an employee's potential retirement. This case is helpful to employers in giving some reassurance that it is not impossible to approach retirement conversations in a non-discriminatory manner. 

The Employment Tribunal dismissed claims brought by Mrs Quick of unfair dismissal and age discrimination, despite her age-related comments having been made to her during the course of her employment, including comments about her retirement plans. These were found to be reasonable in the context of succession planning and for management of that process. 

The legal position is that on 6 April 2011 the default retirement age was abolished and a dismissal based on a person's age now amounts to unlawful direct age discrimination under the Equality Act 2010. The exception to this is where an employer can objectively justify dismissal or establish that being below that age is an occupational requirement. 

Mrs Quick was the head mistress of a primary school.  The school was one of four schools in the area. Cornwall Council intended to form a partnership between these schools to reduce costs. As part of these proposals, the retirement of some teachers was anticipated. 

Mrs Quick was absent from work with depression for a considerable period of time culminating in a final period of sick leave from 4 January 2010 from which she never recovered. She did not return to her teaching duties. 

Certain allegations had been made against her and an investigation was conducted.  The governors of the school decided to dismiss Mrs Quick with notice. The allegations were of serious misconduct and an irretrievable breakdown in trust and confidence between the parties. 

Mrs Quick asserted before the Employment Tribunal that the reason for dismissal was discriminatory on the grounds of age. The Employment Tribunal case was the first time that she had raised any allegations of age discrimination. 

She alleged that a colleague had asked her about her retirement plans and a comment from the employer's senior education improvement officer that "too many people carry on after they should have retired" was also discriminatory. 

The Employment Tribunal dismissed the age discrimination complaint making three key findings.

  1. Given the planned restructuring of four schools, it was sensible for the school and the Council to discuss and record information such as ages of current head teachers and possible retirement, as part of the process of succession planning. 
  2. Mrs Quick had herself made tentative enquiries about her retirement.
  3. Given the problems experienced by Mrs Quick and the nature of the investigation into her alleged misconduct, the Employment   Tribunal found that it was reasonable for the employer to explore the possibility of a compromise with Mrs Quick which included a discussion about her retirement. 

The Employment Tribunal was not impressed by the fact that Mrs Quick had at no stage raised any informal or formal complaint or grievance about alleged age discrimination. It also took a relatively unsympathetic view in Mrs Quick's case due in part to her own misconduct which included a finding that she had deliberately engineered a false allegation against a colleague related to inappropriate conduct with children. 

Ultimately, the Employment Tribunal found that sensible succession planning did not amount to less favourable treatment. 

It should be remembered that any case concerning discrimination will turn on its own facts and whilst we cannot necessarily take any principal of law from this case given that it is only a first instance Employment Tribunal decision, it should give comfort that reasonable discussions about retirement plans are not necessarily unlawful.