Too old to umpire? 65 not out?

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Posted in:HR and Employment|February 11, 2015 | Join the mailing list


Two first class cricket umpires, Peter Willey and George Sharp, have been in the news recently, after it was reported that they lost their jobs because the England and Wales Cricket Board has a blanket policy that first class umpires should not be allowed to
work beyond the age of 65. This has led Mr Willey and Mr Sharp to refer matters to employment law’s Decision Review System (DRS), the Employment Tribunal.

The ECB umpires’ manager has reportedly stated that Mr Willey and Mr Sharp “would otherwise have begun to find it difficult to react quickly enough to the professional game and would have started experiencing difficulties in standing for long periods of time.” 
However, the umpires’ manager has also reportedly admitted to the Tribunal that “the ECB has no evidence to suggest first class umpires would struggle to perform to a high standard once they reach pension age.”

It’s safe to say that any employer seeking to dismiss an employee because of their age first needs to consider matters very carefully, because while direct age discrimination can be lawful if the discrimination is justified, establishing that there was justification
is often far from easy. Policies with the rationale of purportedly protecting employees (for example, dismissing any ECB umpire over 65 so as to protect them from the discomfort of standing for significant periods of time) still need to be very carefully considered
and drafted, preferably with the input of specialist legal advice, so as to ensure that they do not amount to unlawful age discrimination.

Not only has the ECB possibly left itself exposed to claims for direct age discrimination, it may also have acted too quickly in dismissing the umpires. If it failed to investigate whether Mr Willey and Mr Sharp (who between them have umpired first class cricket
for 45 years) were indeed fit or unfit to umpire first class games, then the ECB will have left itself open to claims of unfair dismissal.

Any employer who wishes to dismiss one of its employees should carefully consider whether the employee has two years’ continuous service, because if he or she does, then they have protection against being dismissed unfairly. It’s best to take advice not only
on the issue of whether an employee has achieved two years’ service (as not every case is as straightforward as it may seem), but also on whether the employer has a fair reason to dismiss the employee and on what process needs to be followed prior to deciding
whether to dismiss. Failing to do this can lead to the time and expense of dealing with a costly unfair dismissal claim and possibly paying out compensation.

However, it’s also important to remember that while generally two years’ service is needed to bring an unfair dismissal claim, that’s not the case for discrimination. An employee has protection from unlawful discrimination from the very beginning of their employment
and indeed with regard to job applications, even before the employment begins.

As is often the case with employment law, there’s a lot for employers to consider and it’s always important to make sure that you keep your eye on the ball!             

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Kim Freeman-Smith of the Berg Employment Team on 0161 833 9211 or email her at
kimf@berg.co.uk.

Follow us on Twitter: @Berg_HR

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)

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