Retirement is the dismissal of employees on their reaching a certain age. It is the most obvious example of direct age discrimination. Nevertheless, it will remain lawful under the new Regulations.
The Regulations set a default retirement age at 65. Provided that you follow a fair procedure (see below) you will be able to dismiss an employee for retirement at this age or above. If you wish to operate a lower retirement age, you will need to justify it.
Please note that the following procedure only applies to retirement dismissals that are due to take effect on or after the 1st April 2007. There is a different procedure for retirement dismissals that are due to take place before that date.
The Regulations require en employer to follow the following procedure when intending to dismiss an employee by reason of retirement on or after 1st April 2007:-
1. Employer’s duty to inform
The employer must inform the employee in writing of the intended date of retirement and the right to request to continue working past that date.
This requirement must be fulfilled no more than one year and no less than six months before the intended retirement date. Even if a retirement date is stated in the contract, the employer is still under a duty to inform the employee of the intention.
2. Employee’s right to request
The employee has a right to request to work beyond the intended retirement date. This request should be made between 3 and 6 months before the intended date of retirement.
The request must be in writing and must propose that the employment continue indefinitely, or for a stated period or until a specified date.
3. Employer’s duty to Consider
Once a valid request has been made, the employer must hold a meeting to discuss the request with the employee. The employee has the right to be accompanied by a colleague, who must be permitted to address the meeting and to confer with the employee during it.
4. The Decision
The Regulations do not set out the factors that an employer should take into account when reaching a decision. However, decisions should be made in good faith and the employer should consider whether it would be helpful to vary the employee’s duties or hours.
The employer’s decision must be notified in writing to the employee. If the request is granted, you should set out whether the employment will continue indefinitely or, alternatively, the date on which the employment will end.
If the employer refuses the request, it is not necessary to give reasons.
An employee is entitled to appeal if the request is refused or if it is granted for a shorter period than requested. If an appeal is brought, the employer must arrange an appeal meeting in a similar way to the initial meeting (above).
Please feel free to contact one of our solicitors if you require specific advice on Age Discrimination. |
