As things stood at the beginning of September 2006, retiring employees at 65 will be a fair dismissal provided the appropriate procedure is followed. If it is not then it becomes an automatically unfair dismissal.
The normal procedure involves giving an employee you intend to retire between a minimum six and maximum, twelve months notice of your intention: This must be done in writing and at the same time you must advise the employee of the right to request to work on beyond 65.
But what happens between October 1st and the six months after the legislation comes into force? That is up to April 2007. For example, how can employers give six months notice in September 2006 to someone they want to retire on the 10th October 2006?
Initially employers will need to operate special transitional arrangements. These are:
If before October 1st an employer notifies an employee they will be retired on or after the 1st October the notice given must be the contractual notice. However if that is greater than four weeks a minimum of four weeks notice before retirement takes place must be allowed. This notice should be given in writing
On or as soon as practicable after the 1st October the employer must, in writing, explain the right to request to work on. If so requested the employee is invited to a meeting where the request is discussed. The Employer must consider the request, and give a response. If the request is refused an appeal must be allowed. It will be poor employee relations but seemingly perfectly legal to refuse to give reasons for turning down a request.
An employer giving notice on or after 1st October 2006 that an employee is going to be retired before 1st April 2007 must, in writing, give the longer of contractual or statutory notice, tell them the proposed retirement date and make them aware of the right to request to work on. The rest of the procedure follows, meeting, appeal, etc;
For intended retirements from April 1st 2007 the full procedure applies with a minimum of six and a maximum of 12 months notice of intention.
Remember that the legislation introduced a new statutory retirement age of 65 and enforced retirement below this age will be AUTOMATICALLY Unfair Dismissal unless the employer is able to demonstrate objective reasons which justify it. We know from experience that will be hard to do.
Taking everything into account employers need to decide on a consistent strategy for handling retirement and develop and publish a matching policy and procedure.
As for the whole of this statute it is probably bigger than the Sex Discrimination Act which came into force in 1975. The parallels are it affects employees and potential employee and attitudes to age discrimination are that it’s OK! Unparalleled is the scope. Whereas Sex Discrimination in practice applied to women this applies to everyone irrespective of gender or generation.
Employers without professional HR staff are strongly advised to seek advice on this legislation |
