Legal Ease

The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 came into force on 6 April 2011, repealing the Default Retirement Age (DRA) and the statutory retirement procedures. Employers can no longer give new notices of retirement under the statutory procedures. For those employees who have or will have reached the age of 65 before 1 October 2011 and who have already been issued with a notification of an intended retirement date, the statutory retirement procedures must still be carefully followed as failure to meet the requirements of the statutory procedure could expose you to a claim for age discrimination and unfair dismissal. In addition, you should take legal advice if an employee who has been issued with an intended retirement date requests to work beyond this date and you are considering agreeing to this request because if it is not managed properly, you may find that you are unable to retire the employee at all.

Most employers are abandoning compulsory retirement ages, because they can not pass the stringent test of being able to "objectively justify" compulsory retirement. Employers who want to retain a compulsory retirement age must seek legal advice before deciding to do so.

As employers can no longer rely on a compulsory retirement age, the question of retirement will be entirely up to the employee. Making suggestions that an employee should retire may lead to claims of age discrimination and constructive dismissal. Therefore, dismissing an employee will only be possible if there is some other potentially fair reason for dismissal under established principles.

If you haven’t already done so, employers need to implement well thought out performance management procedures and ill-health processes that must be applied to older employees in the same way as to younger employees. You must not implement procedures that are used to manage employees who are at an age that you consider ‘retirement age’ as this will be age discrimination. Polices and procedures must be applied consistently to all employees.

If you are no longer relying on a compulsory retirement age, you will need to consider:

• Writing to employees to explain any changes, including changes to employment contracts where relevant.



• Making specific contractual provisions regarding Group insured benefits that may, under the regulations, be withdrawn or not offered for those aged 65 and over (or the state pension age when it is raised).



• Changing Contracts of Employment for new starters.



• Withdrawing your retirement policy – the decision to retain a retirement policy and its content, should be based on specific legal advice relating to the individual employer.



• Reviewing the wording of and company wide schemes, which make reference to provisions conditional on retirement.



• How pension schemes may be affected and the pension options where an employee remains in service beyond a pension scheme's Normal Retirement Date.

Labels: Repeal of Retirement Age Provisions