equality act

Default Retirement Age

The Default Retirement Age was abolished on the 6 April 2011, subject to transitional provisions. Therefore, any dismissal because of age taking place on or after 6 April 2011 will constitute direct age discrimination under the Equality Act 2010, unless it falls within the transitional provisions.

The transitional provision period will run for 12 months from 6 April 2011 and to fall within a transitional provision, the following will have to be met:

1)      The notice of intended retirement must have been issued on or before 5 April 2011.

2)      The employee being retired must have reached the age of 65 on or by 30 September 2011.

3)      All requirements of the statutory retirement procedure must have been met.

If the last date for issuing notices of intended retirement is 5 April 2011, as per the corresponding month rule in Dodds v Walker, the notice should expire on 5 April 2012 where the full 12 months’ notice has been given.

The short notice provisions which currently enable employers to give less than 6 months’ notice of intended retirement were also abolished on the 6 April 2011, so cannot be used after 5 April 2011.

The abolition of the Default Retirement Age means that employers will no longer be able to regard 65 as the ‘safe’ age at which to retire employees but will have to show an objective justification for dismissal. To avoid potential employment law problems,this will involve identifying a legitimate aim being pursued and showing that the means to pursue it are proportionate.

In terms of workforce planning, there is no longer an obviously legitimate point at which to have a discussion with older workers about their future plans and when they might cease to work in the business.

Subject to the transitional provisions, retirement is no longer a statutory reason for dismissal. Employers will have to show that the dismissal of an older worker is fair for one of the 5 potentially fair reasons and that a fair procedure was followed within the meaning of section 98(4) of the ERA 1996.

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