Under the 2006 age regulations, employers are obliged to tell employees of their right to request not to be retired. The Court of Appeal has said in R&R Plant (Peterborough) Ltd v Bailey that employers also have to tell employees to specifically stipulate they are making the request under paragraph 5 of the regulations.
Mr Bailey had worked for R&R Plant Hire Ltd since 1999. His employer wrote to him in July 2008 to tell him that he would have to retire on his 65th birthday in January 2009, adding that "should you wish to continue employment beyond this date you are required to make this application to the company in writing."
He wrote back, saying he did not want to retire and asked his employer to keep him on.
When they refused, he brought a claim for unfair dismissal arguing that his employer had discriminated against him on the ground of age and had not complied with the procedural scheme set out in Schedule 6 to the Age Regulations 2006 (now defunct).
Schedule 6 includes the following provisions:
Paragraph 2(1) - this states that employers who intend to retire an employee have to tell them in writing of their right to make a request to stay on, along with the date on which they intend to retire them not more than a year and not less than six months before that date.
Paragraph 5(1) - this provides that the employee may make a request to their employer not to retire them on the intended date of retirement. Paragraph 5(3) states that the request must be in writing and “that it is made under this paragraph"
If the employer gives valid notice under paragraph 2 and receives a valid request under paragraph 5, they have to consider the request at a meeting and inform the employee of the decision in writing. If they refuse the request, the employee must be allowed to appeal against it and to be accompanied at the meeting and at the appeal.
Tribunal and EAT decisions
The tribunal found that although the employer’s letter to Mr Bailey satisfied the requirements of paragraph 2(1), his request letter did not satisfy 5(3) as he had not stipulated that it was being made “under this paragraph”. The consultation provisions had not therefore been triggered and his dismissal was fair.
The EAT disagreed however, saying that the employer’s letter did not comply with paragraph 2(1) because it had not notified Mr Bailey that a request under paragraph 5 must be in writing and had not stated that it must be “made under this paragraph”.
Court of Appeal decision
The Court of Appeal agreed with the EAT that employers are required to tell the employee that they have a right to make a request not to retire pursuant to paragraph 5 of schedule 6 of the regulations.
It was important that employees were told that their employer was invoking a statutory procedure and not just writing to terminate the employment. “The way in which Parliament has provided for that information to be imparted is by requiring the employer to tell the employee that he has a right to make a request not to be retired under paragraph 5 of the schedule”.
Although there was no statutory requirement on employers to tell their employees what the requirements of their request will be when they come to make it, the Court added that it would be good practice to “go the extra distance” and explain the technical requirements they will have to comply with.