14th June 2011

INFORMATION
UPDATE

 Issue No.  2011/12

 Sentient
              

 

RETIREMENT - JUST WHEN WE THOUGHT IT WAS ALL WINDING DOWN - AN ASTOUNDING DECISION BY THE EMPLOYMENT APPEAL TRIBUNAL

 
As you are aware, the Government abolished the default retirement age, which also meant the statutory retirement procedures were abolished.  However, with the transitional arrangements these procedures continue for those who have just been issued with the Notice of Intended Retirement Date prior to 5th April 2011.
 
BUT
The Employment Appeal Tribunal has delivered, what can only be described as an “astounding” decision.
 
To understand the impact, we need to recap that when an employee makes a written request not to retire, the Age Regulations stipulate that the employee must “state that it is made under this paragraph”: that is to say that it is a request under paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006.
 
Because an Employee did not quote ‘paragraph 5 of schedule 6’ in his letter asking to work beyond the Intended Retirement Date, the Employment Tribunal dismissed his claim for unfair dismissal.  However, the Employment Appeal Tribunal has effectively blamed the employer saying that the employer should have told the Employee how to make a valid request.  Consequently, the Employee was then held to have been unfairly dismissed.  Of significant note, is that the Age Regulations do not say that the employer has to tell the employee how to make a valid request, just that they have the right to make a request.
 
In other-words, the EAT are saying that an Employer must include within their letter notifying an employee of the Intended Retirement Date that they have the right to request to work beyond the intended retirement date, and how to make a valid request; namely that it should be in writing, whether they want to continue working to a specific date, or indefinitely, and now, crucially, that the request must specifically cite “para 5 of Schedule 6 to the Employment Equality (Age) Regulations 2006”.
 
As mentioned above, the statutory retirement procedure was repealed (subject to transitional provisions) on 6 April and so this case is of limited significance for the future. However, if you have issued notices of retirement in the run-up to the repeal of the retirement procedure - those notices - on this authority – are likely to be invalid. 
 
Have you issued IRD Letters?
Therefore if you have issued a notice of Intended Retirement Date, and the Employee is still within time to make a request to work beyond the Intended Retirement Date, send a supplementary letter to advise the individual that if they wish to make an application to work beyond the Intended Retirement Date, the request must be in writing and must also confirm the request is being made in accordance with paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006.
 
Hopefully there won’t be too many more landmark cases on retirement given that it seems we are all destined to work longer!
 
 
 
 

 


 

 

 

Sentient

Employment Law
Health & Safety
Personnel / HR
Food Safety
Food Hygiene
Management Training

Sentient


Sentient

Making sense of it all

Sentient - Training


Sentient adj ...

"capable of perception"

"capable of independent thought"

Can we help you?
If you think so, please contact us at advice@sentientuk.co.uk or call UK 08456 446006

To subscribe for these E-mails click here or to access our archive of previous E-mail Updates please click here.  

Click here for details of the services available on our website. 

Our current Open Course Training Programme is available to view here

The advice and comment in this update is not meant to be an authoritative statement of law. The articles and summaries should not be applied to any specific set of facts and circumstances without seeking further advice. Whilst every care is taken to ensure that the content is correct Sentient cannot accept responsibility for the accuracy of statements made nor the result of any actions taken by individuals after reading such.

To unsubscribe to this information newsletter please click here and complete the unsubscribe form on our site.
Warning do not click this link unless you wish to be removed from this update newsletter.