Talking retirement

Dialogue iStock 000009191235XSmall 146X219Allison Cook analyses an Employment Tribunal ruling that conversations and comments on the retirement of an employee of a school were not age discriminatory.

In Quick v Cornwall Council and another ET/1701914/2011, the tribunal dismissed an employee's claims for unfair dismissal and unlawful age discrimination that were based on conversations and comments about the employee's potential retirement.

The employee made claims that she had been unfairly dismissed from her position as head teacher and had been the victim of direct age discrimination, bullying and harassment.

Her claim for age discrimination was based on comments made by colleagues and conversations she had with colleagues. Examples of this were a colleague asking her if she had any plans for retiring, a comment from a colleague at the school that "too many people carry on after they should have retired", comments in an email chain between the Chair of Governors and a colleague discussing the required notice the employee would need to give if she intended to retire and a conversation she had with the chair of governors in which her retirement was discussed.

Unfair dismissal

The tribunal held that the employee's dismissal was fair and that dismissal was due to the employee's serious misconduct in making false allegations of inappropriate conduct with children against a colleague.

Age discrimination

The tribunal held that there had been no age discrimination.

The school was in fact planning to form a partnership with other schools in the area to reduce costs and accordingly, the retirement or redeployment of some employees was likely. The tribunal found that it was therefore appropriate for the school and the council to discuss and record details such as ages of current head teachers and potential retirement plans in order to effectively plan for the future. In addition, the employee had been making enquiries of her own about retirement.

Part of the employee's evidence for age discrimination was that she had been offered a compromise agreement. However, the tribunal found that discussing the possibility of retirement in the context of a compromise agreement could be very favourable to the employee.

The facts of this case were also that the employee had not made any complaints about age discrimination whilst she was employed and so her claim was unsupported.

A number of the employee's allegations were against the Chair of Governors of the school. However, the tribunal found that Chair of Governors had understood that it was the employee's intention to retire and accordingly, discussed this possibility with the employee.

The tribunal held that the Governors were succession planning, rather than treating the employee less favourably.

Another of the employee's allegations was that one of her colleagues asked if she had any plans for retirement. The tribunal held that this discussion was not less favourable treatment, but because the employee's career plans would have an impact on her colleague's career progression.

Best practice

It is important to be clear that the tribunal's decision was dependent on the specific facts of the case. Accordingly, although employers cannot rely on this case as a precedent, it does show that it is possible to have retirement conversations with employees in a non-discriminatory way.

There may be circumstances when it is appropriate to have this discussion with an employee and whether or not that discussion crosses the line between non-discriminatory and discriminatory will depend on the facts. It is unusual that the tribunal did not find the comment "too many people carry on after they should have retired" discriminatory, as similar comments are given as examples of poor practice in the Acas guidance.

Commentators have noted that the tribunal were particularly unsympathetic to the claimant in this case and it has been suggested this was due to the claimant's misconduct. Again, this emphasises that the outcome of this case was relevant to these specific facts.

Allison Cook is a Senior Associate at Veale Wasbrough Vizards. She can be contacted on 0117 314 5466 or by This email address is being protected from spambots. You need JavaScript enabled to view it..