Information & advice

An employment tribunal has dismissed a retirement case brought under the age regulations‚ highlighting the importance of following the retirement procedures to the last detail. 

The Claimant in the case‚ Mr Holmes‚ was retired by his employer on his 65th birthday.  His claim for age discrimination failed because the employer had given him the correct notice of his retirement date‚ and of his right to request not to retire.  Under the age regulations‚ dismissal at or above age 65 does not amount to age discrimination as long as the correct notice is given.

There was also a question as to whether Mr Holmes’ retirement was an unfair dismissal.  An employer is under a duty to consider an employee’s request to stay on in line with the procedure under the regulations; a failure to do this will result in an unfair dismissal. 

In this case‚ the tribunal found that Mr Holmes’ request to stay on was not valid as he had failed to meet the strict requirements set by the regulations. Therefore the employer’s duty to consider the request had not been triggered. 

In fact the employer had failed to follow the duty to consider procedure correctly in a number of ways‚ including not holding a formal meeting to discuss the request‚ and not giving Mr Holmes notice in writing of his right to an appeal meeting.  But because Mr Holme’s request had not been valid‚ any failings in the procedure on the employer’s part were irrelevant and his unfair dismissal claim failed.

Mr Holmes' request to stay on was not valid because he failed to state that the request was made ‘under paragraph 5 of schedule 6’ to the regulations.  Mr Holmes wrote to his employer; “For my wife and I’s retirement planning‚ would you agree to me working until at least January pay slip as my birth date falls at an unfortunate moment prior to Christmas as well as aforementioned reason”.  Even though it was clear that this was a request not to retire on the employer’s intended date‚ and the employer treated it as such‚ it was not a valid request as it did not comply with the specific requirements of the regulations.

This case highlights the importance of checking that both the employee and employer have acted in strict compliance with the regulations.  If you are making a request to stay on you must comply with the requirements laid down in paragraph 5 of schedule 6 to the regulations.

• The request must be in writing.
• It must state that it is made under paragraph 5 of schedule 6 to the Employment Equality (Age) Regulations 2006.
• It must propose that the employment continues:
  1. Indefinitely‚
  2. For a stated period of time‚ or
  3. Until a stated date.
• It must be made between three and six months before the intended retirement date (even where the employer has given more than six months’ notice).