Tuesday 5th December 2023
PUBLISHED ARTICLES
Article 1
Can an Employer Force an Employee to Retire at 65?
The overall effect of the Employment Equality (Age) Regulations 2006 in
respect of retirement is that from 1st October 2006, enforced retirement below
age 65 is generally considered as unfair dismissal. There is a specific exemption
which allows enforced retirement at age 65 or over if correct procedures are
followed (contained in the Age Regulations 2006 Regulation 30). The position
is not without complication as Age Concern are in the process of challenging
the position in court.
Until 1st October 2006 the general rule was that there was an absolute bar
against an over 65 year old employee claiming unfair dismissal. From 1st October
2006 the position has been different. The Employment Rights Act 1996 s.109
has been repealed and the 65 year age limit for unfair dismissal claims has
been abolished but it has been replaced by other rules which mean that enforced
retirement at age 65 or over is generally not unfair dismissal.
The Employment Equality (Age) Regulations 2006 SI 2006/1031 provide for a
default retirement age of 65, subject to certain conditions. The conditions
include that the employee must be given 6 months' written notice which must
inform him that he has the legal right to require the employer to consider
a request to defer his retirement. If the conditions are not fulfilled then
even though retirement takes place on or after the employee's 65th birthday
the employer will be liable to a penalty and in some cases the enforced retirement
can now be unfair dismissal.
The practical effect of the regulations is that the following steps are involved
in a retirement on or after 1st October 2006:
1) 6-12 months before intended retirement date the employer must give the
employee written notice of that date and of the right to request to continue
to work after that date;
2) 3-6 months before intended retirement date the employee can make a written
request to continue to work after that date, specifying whether or not this
is for a particular period or until a particular date;
3) if the employee makes a written request as above, a meeting must be held
with her to discuss it unless it is simply granted without question.
4) if the request is granted the employer must remember to put the revised
contract terms in writing.
In July 2007 the English High Court settled questions for consideration by
the European Court of Justice following an application by the ‘HeyDay’
organisation (part of Age Concern) challenging the legality of the 65 year
mandatory retirement part of the UK Regulations.
The Employment Equality (Age) Regulations, which came into force on 1 October
2006, contain a number of important exceptions. ‘Age Concern’
alleged that many of those exceptions are not permitted by the European Framework
Directive on equal treatment. If the European Court of Justice (ECJ) agrees,
then the UK government will have to rewrite the age regulations.
It was recently reported that only around 900 cases have been brought to tribunals
on the basis of age discrimination. But if we follow the example of the Irish
who have had anti-age discrimination legislation in place longer than we have,
we may well see up to a third of all discrimination claims brought being based
on age.
It is important that professional legal advice is sought when drafting policies
and dealing with legal disputes.
By Charles Price, barrister No5 Chambers
www.charlesprice.net
This article Copyright HRZone - Written by Charles Price
