The preliminary view of the Attorney General is that the present regulations do not breach the European Union Directive on equality. This means that a default retirement age of 65 years, or set retirement ages at or above the age of 65 years, can continue to exist. However, as the full court still has to decide the issue there is still the opportunity for this to change.

 

If Heyday's challenge is successful, there is the risk that a retirement dismissal under the current provisions may lead to a claim of either unfair dismissal or a claim for age discrimination, or both. But if the final decision goes in line with the Attorney General a log jam of tribunal cases will be removed and employers can feel confident that their retirement policy can continue.

 

In the harsh winter of a rapidly expanding economic downturn many companies need to make brutal decisions on the workforce and so this decision, if ratified, will enable businesses to allow employees to leave at 65 and so create opportunities to recruit the next generation of employees so ensuring the essential introduction of new recruits.

 

If that is made more difficult then the consequences could be much higher youth unemployment which is not beneficial for the long term prosperity of the economy.

 

Of course there are times when businesses will not want to lose particular skills and abilities and so there will always be opportunities for employees to work beyond 65.

 

All businesses need to ensure that they carefully follow the correct retirement procedure and set a realistic future retirement date for the individual employee which can then be carefully reviewed.

 

Retirement should follow a fair process to prevent an employee making a claim for automatic or unfair dismissal and age discrimination to an employment tribunal.

 

A fair retirement is a retirement that takes effect on or after the national default retirement age (or on or after the employer's normal retirement age, if there is one) AND where the employer has given the employee written notice of the date of his or her intended retirement and has informed the employee that he or she has the right to request to continue working.

 

You should notify your employees in writing of their right to request to go on working beyond their retirement dates, not more than 12 months before that intended date, or less than six months in advance. Failure to follow this procedure will render the dismissal unfair.

 

If you intend to retire someone using the current procedure, in accordance with the legislation, you need to take legal advice before dismissal is effected and ensure that you follow sound processes and procedures.

 

At the moment there is still an overriding risk in relation to forced retirements if the full Court does not agree with the Advocate General's view.

 

 

 

This article was written by Qdos Consulting who provide the FPB's 24-hour legal helpline and legal expenses insurance package available to members of the FPB.

 

For more information on dealing positively with retirement, please refer to the Age Positive website.