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Can an employer force an employee to retire at 65?


Older workers

Barrister Charles Price discusses the laws surrounding enforced retirement at age 65 or over, and the implications for employers.

The overall effect of the Employment Equality (Age) Regulations 2006, in respect of retirement, is that from 1 October 2006, enforced retirement below age 65 is generally considered as unfair dismissal.

There is a specific exemption which allows enforced retirement at age 65 or over if correct procedures are followed. However, this is not without complication because Age Concern are currently in the process of challenging the position in court.

Until 1 October 2006, the general rule was that there was an absolute bar against an over 65-year-old employee claiming unfair dismissal. Since 1 October 2006, however, the position has been different. The Employment Rights Act 1996 has been repealed and the 65-year age limit for unfair dismissal claims has been abolished. Yet it has been replaced by other rules, which mean that enforced retirement at age 65 or over is generally not unfair dismissal.

Written notice

The Employment Equality (Age) Regulations 2006 provide for a default retirement age of 65, subject to certain conditions. These conditions include that the employee must be given six months’ written notice, which must inform him that he has the legal right to require the employer to consider a request to defer his retirement. If the conditions are not fulfilled then, even though retirement takes place on or after the employee’s 65th birthday, the employer will be liable to a penalty and, in some cases, the enforced retirement can now be unfair dismissal.

The practical effect of the regulations is that the following steps are involved in a retirement on or after 1 October 2006:

  • Six to 12 months before intended retirement date, the employer must give the employee written notice of that date and of the right to request to continue to work after that date.

  • Three to six months before intended retirement date, the employee can make a written request to continue to work after that date, specifying whether or not this is for a particular period or until a particular date.

  • If the employee makes a written request as above, a meeting must be held to discuss it, unless it is simply granted without question.

  • If the request is granted the employer must remember to put the revised contract terms in writing.

In July 2007, the English High Court settled questions for consideration by the European Court of Justice following an application by the ‘HeyDay’ organisation (part of Age Concern) challenging the legality of the 65-year mandatory retirement part of the UK Regulations.

The Employment Equality (Age) Regulations contain a number of important exceptions. Age Concern alleged that many of those exceptions are not permitted by the European Framework Directive on equal treatment. If the European Court of Justice (ECJ) agrees, then the UK government will have to rewrite the age regulations.

It was recently reported that only around 900 cases have been brought to tribunals on the basis of age discrimination. But if we follow the example of the Irish, who have had anti-age discrimination legislation in place longer than in England, we may well see up to a third of all discrimination claims brought being based on age.

It is important that professional legal advice is sought when drafting policies and dealing with legal disputes.

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