Age Discrimination

The Employment Equality (Age) Regulations will protect workers who are either in or seeking employment or vocational training and will cover workers of all ages. The regulations are not just about older workers and will have a major impact on all areas of employment from recruitment to retirement. 

This column focuses on the new procedures when an employee’s employment is terminated on the grounds of retirement and, in particular, what employers will be required to do.

The regulations introduce a default retirement age of 65. Employees can apply to work beyond 65 and employers can attempt to justify an earlier compulsory retirement age. 

Subject to existing contract terms, it is open to employers to fix the retirement age below 65 but if they do so it will be necessary to justify their decision which may not be straightforward. 

Those employers who already have a retirement age lower than 65 and want to hold onto that will have to focus on how they can justify it.

When an employee is due to retire an employer must provide written notification to the employee confirming the retirement date and the employee’s right to request to work beyond this date. This must be done at least six months and no more than 12 months in advance of the retirement date.

If an employee wants to work beyond their normal retirement age, they can informally invite their employer to agree to this.

If the employer refuses, the employee can make a formal request in writing to continue working. This request must be submitted at least three months and no more than six months before the retirement date. 

The employer has a duty to consider this request and invite the employee to a meeting at which the employee will have the opportunity to put his case to continue working. 

The employer must deliver his decision in writing to the employee within a reasonable period of time and tell the employee that he has a right to appeal. 

The regulations do not oblige the employer to give the reasons for rejecting a request but if the employee appeals the decision the employee is required to state the grounds of appeal. 

The employer is obliged to repeat the above process if the original decision is appealed, that is, to meet with the employee, discuss the grounds of appeal and confirm the decision in writing (once again without having to give reasons for the decision).

If an employer fails to adhere to this procedure it may entitle an employee to claim up to eight weeks’ pay as compensation and it may also make the dismissal automatically unfair. 

The regulations abolish the current upper age limit of 65 for claims for unfair dismissal and for a redundancy payment.

This is just one example of the many changes which the regulations will bring to the workplace. The message to employers is to be prepared.

* Graeme Ritzema is a Partner and Head of the Employment Team at Blackett Hart & Pratt LLP. He can be contacted on (0191) 221 0898.