Tuesday, 3 April 2012

How do you inform an employee of their right not to retire?

Under the now defunct Employment Equality (Age) Regulations 2006, an employer had to follow a prescribed procedure if he planned to retire the employee, new case law in the form of, R&R Plant (Peterborough) Ltd v Bailey tells us how much the employer has to say under the old rules.

Under para 2 of Schedule 6 of the Employment Equality (Age) Regulations 2006, an employer who was intending to retire an employee had to notify that employee in writing of (a) the employee's right to make a request; and (b) the date on which he intends to retire the employee. That letter triggers the employee's right to make a request not to be retired. If the employer fails to send that letter, then the dismissal will usually be unfair.

The new judgment applies quite an onerous burden on the employer in that it makes clear that it is not enough state 'If you wish to continue working beyond this date, you are required to make an application to the company in writing'. The letter must go further. It must refer the employee to para 5 of Schedule 6, of the Employment Equality (Age) Regulations 2006which sets out the obligation for the employee's request to be in writing "and state that it is made under this paragraph".

The Government announced in July 2010 that as from October 2011 (with phasing in from April 2011) the exemption which allowed enforced retirement of employees at age 65 or over (in Age Regs 2006 reg 30) would be abolished. This was formally confirmed in January 2011. Appropriate regulations removing the age 65 so called "default retirement age" (or "DRA") were made on 5th April 2011 and came into effect the following day, 6th April 2011, subject to transitional provisions (the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011, SI 2011/1069).

Subject to transitional arrangement in the 2011 regulations, as from 6th April 2011 it is therefore unlawful to require a person to retire by reason of age unless the requirement can be justified as a proportionate means to achieve a legitimate aim (see Age discrimination/2006 regulations/justification defence ).

The Court of Appeal has handed down an important decision reported in LNUK last week on whether employers can objectively justify age discrimination when making a significant costs saving, in a redundancy situation. It upheld the decision of the Employment Appeal Tribunal in Woodcock v Cumbria Primary Care Trust that the objective justification test was met on the facts and the Trust had not directly discriminated against the claimant.

Charles Price is a Direct Access employment Barrister of 11 years Call.

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