PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.
Employers are reminded that the Employment Equality (Repeal of Retirement Provisions) Regulations 2011 come into force on 6 April 2011.
This means that the last date on which an employer can lawfully notify an employee of a retirement dismissal using the statutory Default Retirement Age (DRA) provisions laid down by the Employment Equality (Age) Regulations 2006 is 5 April 2011. After that date, it will no longer be lawful to compulsorily retire an employee on the grounds of age unless the dismissal can be objectively justified as a proportionate means of achieving a legitimate aim.
Under the DRA provisions, employers must give a minimum of six months’ notice of retirement but no more than 12 months’ notice. Previous announcements had suggested that, under the transitional arrangements for phasing out the DRA, all retirements under the provisions would have to take effect by 30 September 2011. This is not the case, however. Retirements notified on or before 5 April 2011 can continue to the end of the given notice period, provided certain conditions are met. These are:
• the statutory procedures set out in the 2006 Regulations must be followed. These include notifying the employee that he or she has the right to request to continue working beyond the DRA – or the normal retirement age where your business has in place a higher normal retirement age. Employers have a duty to give serious consideration to such a request; and
• the employee must turn 65 or reach the higher normal retirement age before 30 September 2011.
As an extension of up to six months can be agreed, the Department for Business, Innovation and Skills states that the latest possible retirement date using the statutory DRA procedures is 5 October 2012.
The 2011 Regulations also repeal the provision allowing short (two weeks’) notice of retirement. Short notifications will therefore no longer be permitted after 5 April 2011.
The Advisory, Conciliation and Arbitration Service has published guidance for employers, entitled Working Without the Default Retirement Age, which can be found at http://www.acas.org.uk.