Age regulations

You're How Old?

Now that the age discrimination regulations have come into effect (see LELR 114 for an outline), employees have the right to request to work beyond their retirement date.

Richard Arthur, a solicitor from Thompsons Employment Rights Unit in London, looks at two specific aspects of the regulations –transitional provisions and retirement dismissals.

What are the standard rules?

For people retiring with “expiry dates” on or after 1 April 2007, the standard rules will apply.

The regulations impose two notification duties on employers:

(i) an employer intending to “retire” an employee must notify the employee in writing of the employee’s right to make a request and the date on which they
intend to retire the employee between six months and one year before the intended date of retirement
(the “Paragraph 2 Duty”)
(ii) where an employer fails to comply with their Paragraph 2 Duty, they have a continuing duty to notify the employee as in (i) until the fourteenth day before the operative date of termination (the “Paragraph 4 Duty”).

Details about the employee’s procedure for making a request to stay on, the right to a meeting to discuss the request, the right to be accompanied and the right of appeal can be found in LELR 114.

What are the transitional provisions?

If the “expiry date” is on or after 1 October 2006, but before 1 April 2007, the regulations set out transitional arrangements which apply in four different circumstances.

What happens if four weeks’ notice is given before 1 October?

If the employer gives notice before 1 October of at least the period required by the contract of employment (or at least four weeks) to expire before 1 April 2007; the employer has made the employee aware before 1 October 2006 that they consider that the employee is being retired on the expiry date; and on or as soon as is practicable after 1 October, the employee notifies the employer in writing of their right to make a request, the employer is treated as complying with their Paragraph 2 Duty.

An employee’s request to stay on, which otherwise complies with the requirements described in LELR 114, will be valid if made:

where practicable, at least four weeks before the expiry date or
where this is not practicable, as soon as reasonably practicable (either before or after the expiry date), but not more than four weeks after the expiry date.

If the employer fails to notify the employee on or as soon as reasonably practicable after 1 October of their right to make a request to stay on, the Paragraph 2 Duty does not apply and the Paragraph 4 Duty applies up to the expiry date.

The employee can make a request to stay on either before or after notification.

What happens if less than four weeks notice is given before 1 October?

If the employer gives notice before 1 October which will expire before 1 April 2007, but the period of notice given is less than four weeks (irrespective of what is provided for in the contract: or the employer has not made the employee aware before 1 October that they consider the employee is being retired on the expiry date; and on or as soon as reasonably practicable after 1 October, the employer notifies the employee in writing of their right to make a request, the employer is treated as complying with their Paragraph 2 Duty.

The employee has the right to make a request to stay on. If the employer fails to notify the employee on or as soon as reasonably practicable after 1 October of their right to make a request, the Paragraph 2 Duty does not apply and the Paragraph 4 Duty applies up to the expiry date.

What happens if notice is given on or after 1 October?

If the employer gives notice on or after 1 October as required by the contract (or statutory, if longer) to expire before 1 April 2007; and before, or the same day as giving notice of dismissal, the employer notifies the employee in writing of their right to make a request, the employer is treated as complying with their Paragraph 2 Duty.

The employee has the right to make a request to stay on. If the employer fails to notify the employee before, or on the same day as, giving notice of dismissal of their right to make a request, the Paragraph 2 Duty does not apply and the Paragraph 4 Duty applies up to the expiry date.

If the employer gives notice on or after1 October which is shorter than the contractual notice (or the statutory notice, if longer) to expire before 1 April 2007, then the Paragraph 2 Duty does not apply and the Paragraph 4 Duty applies up to the expiry date. The employee can make a request to stay on.

What are retirement dismissals?

The age regulations have also introduced a new potentially fair reason for dismissal - retirement. Although employees over the age of 65 now have the right to claim unfair dismissal, retirement dismissals over age 65 will almost always be fair if the employer complies with their notification obligations.

However, it is clear that some employers have already dismissed older workers before 1 October to prevent the over 65s from acquiring the right to claim unfair dismissal. Unions will need to be astute to identify the real reason for dismissal.

What if the reason “could be” retirement?

If the reason for the dismissal “could be” retirement, a tribunal will have “particular regard” to the following criteria, to determine if the reason is actually retirement or not:

whether or not the employer complied with their Paragraph 4 Duty
if so, when and
whether or not the employer followed or sought to follow the procedures for holding a meeting to consider a request.

Where the reason (or principal reason) for the dismissal is retirement, the employee is regarded as unfairly dismissed if, and only if, the employer has failed to comply with

their Paragraph 4 Duty (assuming they didn’t comply with their Paragraph 2 Duty)
their duties to consider a request and arrange a meeting or
their duty to consider an appeal.

Stop Press: Pensions provision delayed

The Government has announced that it is to delay the implementation of the pensions provisions, apparently to allow more time for employers to “get to grips with them”. These are now expected to be implemented on 1 December, following an additional mini-consultation.

How do unions work out the reason for dismissal?

The reason for dismissal can be worked out using the following table (remembering that any retirement age below age 65 needs objective justification):