Thursday, 10 February 2011

Useful article on default retirement age

Curtesy of HR Zone and Iain Jenkins Prtner at Lee and Priestly

The recent announcement by the Government that the default retirement age (DRA) will, as expected, be abolished with effect from 1 October has been welcomed by age campaigners.

It does not, however, necessarily spell the end of forced retirement and employers groups, including the CBI, have pointed out. The proposed abolition of the DRA in October 2011 will notprevent private employers from having a compulsory retirementage provided they can objectively justify having it.

To establish objective justification they will need to have a legitimate aim, or aims, for having a DRA and, in relation to those employees to whom it applies, that aim, or those aims, must be consistent with the Government's approach to the UK's DRA of 65 and both the chosen retirement age and the process for implementing it are a proportionate response to those legitimate aims.

That will be for the courts to determine on a case by case basis and, whilst it is likely to be a high hurdle, it will be possible. Recent case law (Seldon v Clarkson Wright & Jakes) has made it easier, in principle, for employers in the private sector to put forward an argument of objective justification and to have a DRA of some kind, although it is probably going to make it more difficult to have one across the board.

Employers should, therefore, look carefully at their need to have a retirement age and then at how to justify and implement it. Iain Jenkins, partner at law firm Lee & Priestley, says that being able to justify having a retirement age after October 2011 will be a high hurdle, but not impossible …

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