The UK government has won an appeal against a landmark employment tribunal ruling which would have given full employment rights to workers over 65.
In August 2001 Rutherford from Essex and Samual Bentley from London successfully argued that they were entitled to unfair dismissal and redundancy pay under European law.
Then, the tribunal agreed with them that withholding employment rights amounted to indirect sexual discrimination because twice as many men than women aged over 65 continue to work past the retirement age.
But the Department of Trade and Industry (DTI) successfully argued at the Employment Appeal Tribunal that it was wrong to conclude there was sexual discrimination against men when the majority of the workforce was under 65, and therefore not discriminated against by the law.
Unless the new decision is overturned at a further appeal, this means that pensioners in the UK will have no legal protection in the workplace until the introduction of new European legislation in 2006.
The charity Age Concern England estimates that there are about 250,000 employees over 65 in the UK. If the government’s appeal is rejected, many others over 65 could bring cases of unfair dismissal and redundancy payments.
"People over 65 should have exactly the same workplace rights and protection as everyone else," said Gordon Lishman, director-general of Age Concern.
"The outcome of today’s appeal means that age discrimination remains acceptable in the workplace."
Patrick Grattan, chief executive of the Third Age Employment Network, said: "This is utterly perverse and a disincentive to work, given that by 2006 there will be legislation on age discrimination which will make it illegal to determine employment rights on the basis of age."
But Sam Mercer, Director of the Employers Forum on Age (EFA), said bringing a sex discrimination claim was not the best way to improve the situation for older workers.
"It is better for both employers and employees to wait until the upper age limit on unfair dismissal is removed as part of new age laws that are to be introduced in 2006," she said.
"Employers are planning for these new laws – but cannot be expected to make fundamental changes to employment policy and practice overnight."
Despite the new ruling, new laws against age discrimination will still be implemented in the UK by 2006. The EU Employment Directive will require employers rewrite their policies on retirement, redundancy, unfair dismissal and recruitment and will make it unlawful to set age limits in job adverts.