Asking a 60-something when they are going to retire is discrimination

Asking a 60-something when they are going to retire is AGE discrimination, tribunal judge finds as civil servant wins claim against MOD who asked him about his retirement plans

• A 30-year-old would not be asked about their plans to stop work, tribunal found
• Employment tribunal found raising the subject of retirement was ‘unfavourable’ 
• Ian Tapping, a civil servant in his 60s, successfully sued his former employer 

Asking someone in their 60s when they are going to retire is age discrimination, an employment tribunal has ruled as it found in favour of a civil servant who sued the Ministry of Defence (MOD) for unfair treatment.

A 30-year-old would not be asked about their plans to stop work because they would not be in a position to start taking their pension, a judge found.

Raising the prospect of retirement to someone approaching pensionable age – if they want to continue working – is therefore ‘unfavourable treatment’, Employment Judge James Bax said. 

Ian Tapping, a civil servant in his 60s, successfully sued his former employer the MOD for age discrimination. 

The experienced official had launched a grievance against bosses and was worried he was going to lose his job.

During a meeting with HR to discuss his concerns his plans for retirement were raised, the panel heard.

Ian Tapping, a civil servant in his 60s, successfully sued his former employer the Ministry of Defence for age discrimination (file image)

A 30-year-old would not be asked about their plans to stop work because they would not be in a position to start taking their pension, a judge found (file image)

The MoD claimed this was necessary to effectively manage staff and plan for hiring new employees when workers leave.

But Judge Bax ruled it was ‘unreasonable’ to ask Mr Tapping about whether he would retire as he had shown no indication of wanting to leave his job.

He ruled the retirement suggestion from the MoD was a ‘means of removing the aggrieved person from the problem.’

Employment Judge James Bax

Judge Bax said: ‘Mr Tapping was in his 60s and therefore he was someone who could be considered to be entitled to start drawing on a pension at that time or in the relatively near future.

‘A person in their 30s would not be in such a position as they would not be able to take a pension at that age.

‘Mr Tapping was concerned about his career and had shown no indication of wanting to leave his job. In the circumstances of someone who wanted to know that his position was secure, it was unreasonable to ask him to consider when he intended to retire.’

Mr Tapping is now in line for compensation.

The tribunal heard Mr Tapping was project manager who worked as part of the RAF’s Air Information Documents Unit – which deals with the interaction of military and civilian aircraft.

From the end of 2016 – when Mr Tapping started in the role – his line manager was Matthew Harrison, who was the Leader of the Integrated User Services Team.

In October 2017 Mr Tapping told Mr Harrison he was struggling due to fibromyalgia, a long-term condition that causes pain all over the body, migraines and extreme tiredness.

Judge Bax ruled it was ‘unreasonable’ to ask Mr Tapping about whether he would retire as he had shown no indication of wanting to leave his job (file image)

He said his workload had become ‘unmanageable’ as he was doing the work of one and a half people, the tribunal heard.

However, his request for someone to help him was not granted and he was moved off the project.

Mr Tapping then decided to raise a grievance against Mr Harrison for failing to make reasonable adjustments for him.

The tribunal heard that in a meeting Mr Tapping was told by a senior official he had to drop the complaint. He added that ‘if Mr Tapping did not make a good job of his next assignment that he would not have a job,’ the panel was told.

The tribunal heard Mr Tapping considered the official was making threats about his future at the MOD. He was then signed off work with stress and claimed he had been bullied.

The hearing was told that while he was off work in September 2018, Mr Tapping spoke to a member of the MoD’s Employee Services Team, about instigating a bullying and harassment claim.

The tribunal said: ‘Mr Tapping’s witness statement referred to (her) asking questions to infer he was a reluctant worker and that she introduced a question as to when he was going to retire.

‘He informed her he had no retirement plan but had assumed it would be his 67th birthday.

‘Mr Tapping’s evidence was that he was upset by the comment and did not think a 35-year-old would have been asked the question.’

Mr Tapping eventually resigned in January 2020 and sued his employers.

Judge Bax said: ‘Mr Tapping was in a situation where he had raised a grievance and was very concerned about his employment with the MOD.

‘Suggesting that someone retires and leaves is not a solution to the subject matter of the grievance, it is a means of removing the aggrieved person from the problem.

‘The MOD relied upon a defence of justification and in particular the aim or need to effectively manage staff and ensure effective succession planning.

‘For someone who is seeking reassurance that their position and employment is safe, it is not reasonably necessary and therefore proportionate to ask if they are considering leaving.

‘I was not satisfied that the intention was to implement the stated aim and, in any event, in Mr Tapping’s circumstances it was not reasonable and was not proportionate.

‘Mr Tapping was therefore treated less favourably on the grounds of his age.’

His claims of the MOD failing to make reasonable adjustments, discrimination arising from disability, harassment related to disability and age discrimination succeeded.

Additional claims that he had been unfairly treated for whistleblowing, direct disability discrimination and harassment related to age were dismissed.

A remedy hearing to decide on the compensation that Mr Tapping will receive will take place at a later date.

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