Information & advice

Judith has worked for her employer for five years.  She has been given two months’ notice that her retirement date will be her 65th birthday - 9th March 2007.  There is a normal retirement age of 65 for the position.  She was given notice at the same time of her right to request not to retire but has not yet made a request.

Her contract states that she is entitled to two months’ notice of the termination of her employment. 

1. Is there a potential age discrimination case?

Is retirement the reason for dismissal?

Judith will be aged 65 at the time of dismissal and this is the normal retirement age for the position.

Has the employer given the correct notice?  As the retirement is due to take place before 1st April 2007 (i.e. within the first six months of the Regulations being in force)‚ the transitional arrangements set out in Schedule 7 apply (see page 30 of ‘Making a Case Against Age Discrimination’).  Under these transitional arrangements‚ Judith is entitled to either the amount of notice required under her contract or the statutory minimum notice‚ whichever is the longer (note that the rules are different for notice given before 1st October 2006). 

As she has worked for the employer for five years‚ the statutory minimum notice she is entitled to is five weeks.  As her contract states she is entitled to the longer period of two months‚ the employer must give her two months’ notice.  So the employer has given the correct amount of notice and retirement will be taken to be the reason for the dismissal.  It will be treated in the same way as if the employer had given the six months’ notice normally required by the Regulations. 

Has the client made a request not to retire?

Under the transitional provisions‚ if Judith wants to make a request not to retire‚ she must do so at least four weeks before the retirement date‚ or if this is not possible‚ as soon as is reasonably practicable after being told of her right to make the request.  In this case it should be practicable for Judith to make her request in time and so she should do so as soon as possible.  The employer must then follow the duty to consider procedure as normal.   If the employer makes any errors in following the procedure‚ the dismissal will be an unfair dismissal.

The case should be dealt with as a normal retirement case from this stage onwards.

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