Labour & European Law Review Weekly Issue 222 16 June 2011
The 2006 Employment Equality (Age) Regulations set out the procedure that employers must follow when they want to compulsorily retire an employee. In Bailey v R&R Plant (Peterborough) Ltd the Employment Appeal Tribunal (EAT) said that employers must also tell employees what to include in their letter when exercising their right to request to stay on.
On 11 July 2008, Mr Bailey, a vehicle engineer with the company since 1999, was told that as the company retirement age was 65, he would have to retire on or before his 65th birthday on 20 January 2009.
On 18 July 2008 the company wrote to Mr Bailey, confirming that if he wanted to continue his employment beyond 20 January, he would have to apply in writing. Mr Bailey replied on 14 August saying that he hoped to continue working for the firm for the foreseeable future.
The managing director met with him again on 12 September to offer the possibility of part time work, but nothing else. He did not confirm this in writing. In January 2009, the company confirmed it could only offer part-time work.
The Tribunal decided that Mr Bailey’s request letter did not satisfy the requirements of paragraph 5. Relying on the decision in Holmes v Active Sensors, the Tribunal said that Mr Bailey’s letter should have made specific reference to the Regulations.
As Tribunals had to follow the clear wording set out in the Regulations (despite the “onerous burden” it put on claimants), it had no option but to find that Mr Bailey had failed to invoke the right to request procedure. The unfair dismissal and age discrimination claims failed. Mr Bailey appealed against the unfair dismissal finding.
The EAT agreed with the Tribunal that the words in paragraph 5 were “clear in their meaning” and mandatory. A request under that paragraph therefore had to be in writing and must state specifically that it is being made “under this paragraph”.
But how were employees supposed to know that? The answer, said the EAT, lay in paragraph 2(1)(a) which placed a duty on employers to inform the employee of the conditions for a valid request. “Thus, for example, the employer must notify the employee that a request under para.5 must be in writing and must state that it is made under that paragraph”.
The EAT reasoned that, as paragraph 5 is a statutory, procedural right, employees must be told the conditions that are essential for exercising it, and as schedule 6 clearly envisaged that employers would, in general, initiate the procedure and inform themselves about the requirements, then it made sense for them to ensure their employees knew as well.
That being so, the company’s letter of 18 July did not comply with the duty set out in paragraph 2 of schedule 6 and the dismissal was unfair.