WORKSHOP: Personal Trainer

STEPHEN BUBB, chief executive of the Association of Chief Executives of Voluntary Organisations (ACEVO). Send your questions to: stephen.bubb@haynet.com

A senior member of staff has reached 65. They are arguing that they have a right to remain in employment.

What should I do?

This question raises all sorts of issues around age discrimination and pensions. Under UK legislation, an employer and employee can agree a retirement age if they chose to. If the employer has specified no retirement age, then the "default

retirement age of 65 applies as contained in the Employment Rights Act 1996. Beyond this age, employees cease to have protection.

However, a recent employment tribunal decision in the case of Rutherford has potentially paved the way for employment rights to be given to workers over the age of 65. The tribunal found that legislation prohibiting those over 65 from pursing claims for unfair dismissal and redundancy payments was discriminatory.

The employee concerned in this case had got round the age discrimination issue by claiming sex discrimination. They said that the age cutoff point for employment claims affected significantly more men than women because more men were working or wishing to work over the age of 65.

Do not get too alarmed by this because the Government is considering whether to appeal the decision in this case. If it does, the case is likely to go to the European Court of Justice so it is a long way off.

However, all of us in third-sector bodies should look at whether we have an agreed retirement age for our employers specified in contracts and collective agreements. Don't assume that people automatically want to retire when they reach state retirement age.

In any case, employers in the sector do need to consider what their attitude is to age discrimination. The situation in this country is going to change because of the European Equal Treatment Directive. This requires the UK to introduce protection against age discrimination by 2006.

The Government recently indicated that it is actively considering how to do this. It is also due to publish a Green Paper on the future of pensions looking at a recommendation for a common state retirement age at 70.

Companies such as Sainsbury's, Nationwide and B&Q have abolished compulsory retirement. A number of third-sector organisations are pushing for the scrapping of the state retirement age.

In a sector where we actively encourage volunteers from among the older population and retirees, shouldn't we be leading the way on age discrimination policies?

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