Age Discrimination & Retirement
Introduction
The Employment Equality (Age) Regulations, which came into force on 1st October
2006, set a default retirement age of 65. This age is to be reviewed in 2011.
Employers can set a retirement age at or above this age; if they set an age
below 65, it will need to satisfy the test of objective justification.
Employers do not need to set a fixed retirement age (the default age, when employees
may be retired by their employers, will then apply), and employees have the
right to request to continue working beyond the retirement date.
|
 Related
Documents |
|
|
|
|
| Information Pages |
|
|
|
|
|
Fair Retirement
A fair retirement is one that takes effect on or after the company retirement
age.
The employer must have given the employee written notice of the date of their
intended retirement, and have told them about their right to request to continue
working. This notice must be given between six and twelve months before the
relevant date.
If an employer fails to notify the employee six months prior to the retirement
date they may be liable for compensation. An ongoing duty subsists (until two
weeks before the retirement) to inform the employee of the intended date and
their right to request working longer. Any failure to adhere to this will make
the dismissal automatically unfair.
Compensation, depending on the extent of failure to follow the duty-to-consider
procedure, may be awarded of up to eight weeks' pay or the dismissal will be
automatically unfair.
It is important to note that employees of any age can bring unfair dismissal
claims, and that the age limit for such claims has been removed under the regulations.
If the employer fails to inform their employee of the intended retirement date
and of their right to request to continue working, the employee will be able
to make a request not to retire at any stage until dismissal. If the employee
does make a request the employment must continue until the day after the employer
informs the employee of their decision on the request.
Working Beyond
If a request to continue working is made, employers should follow the correct
procedure in dealing with it. Employers are not obliged to accede to the request
(and it is wise to notify the employee of this), but they must follow a duty
to consider it. A reason need not be given should the request be turned down,
as the reason for the refusal will be retirement.
Employers are advised that giving reasons and a more detailed explanation of
the retirement policy will help maintain good workplace relations. In these
circumstances, care should be taken not to suggest any discrimination on the
grounds of race, gender, disability, sexual orientation, gender reassignment,
religion or belief.
Dealing with Requests
If an employee requests in writing not to be retired the employer must consider
it before the employee is retired. Failure to do so will make the dismissal
automatically unfair. Employer and employee should meet to discuss the request
within a reasonable period of its submission (unless the request is agreed to
or it is not practicable to hold a meeting). Employers should inform employees
of the decision in writing as soon as is reasonably practicable. The employee's
employment subsists until the employee is informed of the decision.
Employers should remember positive reasons for granting extensions to work,
in particular:
- savings to the organisation in recruitment and training costs
- retaining the valuable experience and knowledge of the employee
The employee has a right to be accompanied at the meeting. This meeting is
an opportunity for the employee to state their case for continuing before the
employer. Whilst the employer may not agree to employee's request in entirety,
compromises may be reached regarding alternative dates and/or working patterns
than those which the employee requests.
The employee has a subsequent request to appeal against the employer's decision,
which represents the final opportunity for the employee to state his or her
case.
Transitional Period
For employees retiring on or shortly after 1st October 2006, transitional arrangements
exist, which are applicable up to 1st April 2007.
Where notice was given before 1st October 2006, that the employee is to be retired
after 1st October 2006 but before 1st April 2007, either:
- notice must be at least the period required by the contract of employment;
or
- where the employee is already serving a long period of notice required by
the contract that exceeds four weeks, the employer must have given at least four weeks'
notice before 1st October 2006 to ensure the employee is aware and given the
statutory minimum period of notice for retirement.
On 1st October 2006, or as soon as possible afterwards, the employer must write
to the employee telling him or her of the right to request to work longer. The
employee can make such a request after the contract has been terminated but
not more than four weeks afterwards.
Meetings to discuss the request, and any appeals, should be conducted as normal.
