Information & advice

Sajid‚ who is aged 66‚ was given eight months’ notice in writing of his retirement date and right to request not to retire.  There is no normal retirement age for the position.  Sajid made a request in writing six months before the intended retirement date‚ but did not hear back from his employer.  He wrote again to his employer four months before the intended retirement date to remind them of his request. 

His employer finally arranged a meeting to take place three months before the intended retirement date.  Following the meeting the employer wrote to Sajid stating that his request had been refused.  The letter was not dated and did not mention Sajid’s right to an appeal meeting.

1. Is there a potential age discrimination case?

Is retirement the reason for dismissal?

Sajid will be over 65 at the date of dismissal.  There is no normal retirement age. 
The employer has given between twelve and six months’ notice.
The reason for dismissal will therefore be retirement.

Has the client made a request not to retire?

Sajid made his request within the required timescale – i.e. no more than six months and no less than three months before the retirement date. 

Has the duty to consider procedure been followed? 

The duty to consider procedure as set out in schedule 6 to the Regulations requires the employer to ‘hold a meeting to discuss the request with the employee within a reasonable period after receiving it’.  It will be for tribunals to interpret what would be ‘a reasonable period’ in each case.  In Sajid’s case it should be argued that the three months between the request and the employer holding a meeting was not a reasonable time.

Schedule 6 to the Regulations requires all notices given during the duty to consider procedure to be in writing and dated.  It also requires an employer who has refused a request to give the employee notice of their right to appeal the decision.  Sajid’s employer has failed to comply with these requirements.

There are three points on which it can be argued that the employer has not followed the duty to consider procedure.  Sajid therefore has a claim for unfair dismissal.

2. Beginning action on a case

Grievance procedure

Sajid is not required to follow the grievance procedure in this case‚ as the claim only relates to the dismissal (see page 42 of ‘Making a Case Against Age Discrimination’ for details of when the grievance procedure applies).

3. Taking a case

Time limits

A claim must be submitted within three months of the date of dismissal.

Submitting the ET1

The ET1 should set out the facts on which the case is based‚ in particular setting out dates and details of all correspondence and meetings‚ to illustrate the procedural errors.  The ET1 should state that the dismissal amounts to an unfair dismissal under section 98ZG of the Employment Rights Act 1996.

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