Out-Law News 3 min. read
18 Feb 2011, 10:59 am
The Government has changed its plans for the phasing out of the retirement age and has extended the notice that can be given to the employees who are being asked to retire from six months to 12 months.
But because of the way the draft regulations are written they will only apply to people whose sixty fifth birthday falls between 6 April and 30 September 2011, according to Catherine Hey, an employment law expert at Pinsent Masons, the law firm behind OUT-LAW.COM.
"The requirement of the transitional provisions of the draft regulations that they apply to workers who reach 65 between 6 April 2011 and 30 September this year does not make sense," said Hey.
"The effect of this would be that if you have already given notice of retirement to an employee aged 65 or over, been through the right to request procedure, and set a termination date for sometime after 6 April 2011, you would be acting unlawfully if you then retired them unless the retirement could be objectively justified," she said.
"This does not accord with what the government said in its consultation response in January and is contrary to what employers were led to believe was the case. Our advice to employers at the moment is to sit tight until we know more," said Hey.
For those whose birthday falls within this period, the transitional period for phasing out the DRA has been extended from six months to a year, running until 4 April 2012.
The transitional period was previously scheduled to run until September of this year. Employers will now be able to choose how much notice to give workers from a minimum of six months to a maximum of 12 months. They must just give notice of retirement to employees by 5 April 2011 and follow the existing statutory retirement procedures.
The Government has insisted that the regulations are what it intended, and that they should only apply to people who turn 65 between April and September of this year.
"The Regulations laid in Parliament on 16 February set out that from 6 April 2011 employers will not be able to issue notifications of compulsory retirement using the DRA procedure," said a spokesman for the Department of Business, Innovation and Skills (BIS). "After this date, only people who reach retirement age on or before 30 September, and who were notified of their retirement date before 6 April, can be compulsorily retired using the DRA procedure."
"It may be technically possible to issue a notification of retirement to take effect after the transitional period ends, but only for those who reach retirement age during that period. However, this is likely to involve a deviation from an employer's usual processes (ie asking someone to retire after the date they would normally be due to retire) and we would not recommend an employer uses the transitional provisions in this way," said the spokesman.
The Government is removing employers' right to end workers' employment because they have reached the age of 65. It previously announced that for any workers who had reached 65 employers would have to give six months notice of the end of their employment from April.
The draft Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 outline the specifics of the Government's plans for the phasing out of the DRA – but they are not yet available on any Government website. They are due to come into force on 6 April 2011.
Employers' groups had urged the Government not to take away their right to force workers to retire at 65 but the Government said that now that people were living longer they were capable of working until later in life.
"Retirement should be a matter of choice rather than compulsion – people deserve the freedom to work for as long as they want and are able to do so," said Employment Relations Minister Edward Davey last month. "Older workers can play an incredibly important role in the workplace and it is high time we ended this outdated form of age discrimination."
Editor's note: this is an updated version of a story that was first published on 17/02/2011.
