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.
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As mentioned above, the statutory retirement procedure was repealed (subject to transitional provisions) on 6 April and so this case is of limited significance for the future.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!