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Repeal of the Default Retirement Age – What next?

21st September, 2011

The Default Retirement Age of 65 was abolished with effect from 6th April 2011 meaning that employees can therefore work until they decide to retire or are dismissed on one of the other potentially reasonable grounds for dismissal (capability, redundancy, misconduct, for example). In some circumstances employers can still retire employees as long as the retirement can be objectively justified.

Previously, employers issued notification of retirement under the Employment Equality (Age) Regulations 2006. This could be done up to 12 months prior to the employee reaching his or her 65th birthday.

It is now not possible to automatically retire an employee at the age of 65 unless compulsory retirement at this age or any other age, can be objectively justified by the employer.

What Next?

There are two main options available to employers wishing to retire employees:

1. Objective Justification

It may still be possible to retire an employee lawfully as long as the retirement age can lawfully be objectively justified. However, careful consideration needs to be given to this as the compulsory retirement age must meet a “legitimate aim.” This can include, for example, the health and safety of an employee, colleague and the general public. The compulsory retirement age must also be a proportionate means of achieving that aim. Certain sectors such as Air Traffic Controllers are an example of where a compulsory retirement age can be justified as they require exceptional mental fitness in order to carry out their duties which can degenerate with age.

2. Work Place Discussions

Having regular discussions with employees can help organisations obtain details of their employees’ future plans and aims, including the possibility of retirement.

It is advisable at least once a year (if not more) to schedule in a discussion with your employees about your expectations of them, their performance and future aims and aspirations. The discussions can take place as simple informal chats or can form part of regular more formal appraisals.

It should be noted that employees have a right to be treated fairly and without discrimination and so workplace discussions should involve all employees regardless of age. It is advisable that workplace discussions are recorded and a copy of the discussion be provided to the employee. This will assist in providing transparency to an employee and negate any feelings of mistrust.

Practical Steps for Employers to take next:

1. Review all retirement notices already sent out and check that the proposed retirement date does not fall after 1st October 2011;

2. Consider employees over the age of 65 who have already been granted the right to continue working after that age;

3. Look at actions required to deal with the loss of the default retirement age;

• Is compulsory retirement a requirement in your organisation? (Objective Justification is not an easy test to pass and it will be necessary to provide evidence if challenged. If compulsory retirement is the preferred option, it is suggested that legal advice is sought);

• If compulsory retirement is not required, look at introducing informal workplace discussions if this is not already undertaken in the organisation. Consideration should also be given to the amendment/introduction of performance management, recruitment and flexible working policies and procedures.

4. If group risk insured benefits are used, you will need to take advice on the wording of the exemption and whether this applies to over 65’s.

5. Consider taking legal advice and/or training in the new law and procedures for management and staff.

For any queries relating to this article or any other employment law issues, please call If you have any queries regarding this article please contact Helen Watson at [email protected]

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