Default retirement age to be abolished

In a move welcomed by anti-age discrimination groups, the government has announced its intention to scrap the default retirement age of 65.

It seems the Powers That Be have finally woken up to the fact that people are simply living longer – meaning they must also work longer to save for their retirements. To illustrate, in 2008 16% of the population was over 65 and but this is predicted to rise to 23% by 2033.

The fault retirement age will be abolished with effect from 1 October 2011, subject to transitional provisions. This means that an employer which dismisses its employee for reason of retirement on or after 1 October 2011 will have to be capable of justifying its actions under the Equality Act 2010 (EqA 2010). This applies even if notice of the dismissal is given before 6 April 2011.

For dismissals due to take place before 1 October 2011, the government has indicated that there will be a six-month transitional period (6 April 2011 to 1 October 2011) so that retirements already in train can continue through to completion, provided that: the notification of retirement is issued prior to 6 April 2011; the date of retirement falls before 1 October 2011; and all requirements of the statutory retirement procedure have been met.

So, the last date for issuing a notice of dismissal for retirement under the current statutory retirement procedure is 5 April 2011; the last effective date of termination for such dismissals is 30 September 2011.

Of course, the burning question all employers will be keen to ask themselves is “is it lawful to retire people at all, or is it just the age at which I chose to do so which is important?” To answer, it is anticipated that the courts will to recognise that legitimate aims are pursued by retirement; i.e. an employee’s productivity can decline and, at some point, it will be vital to bring a younger persons into the workplace. However, it will also want to satisfy itself that the particular age chosen is appropriate and necessary.

In other words, employers will no longer be able to regard 65 as the “safe” age at which to retire employees but will instead have to show objective justification for dismissing at this or any set age for retirement. Whether employers actually keep fixed retirement ages or decide when to retire people on a case-by case basis, they will have to justify the decision to retire. This will entail identifying a legitimate aim being pursued and showing that the means used to pursue it are proportionate.

The bottom line for employers is that, while consensual retirement may well become the norm, it is worth remembering that it will still be possible to retire people compulsorily where this can be objectively justified.

Dyne Solicitors Limited – 01829 773100,

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