The Government has revised the draft Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 to address a problem in the transitional provisions contained in the original draft that would have meant that the retirement procedure could not be relied on in respect of an employee whom it was intended to retire before 1 October 2011 and who was already 65 by 5 April.
According to a copy of the new draft obtained by emplaw, an employee can be retired under the transitional provisions provided he or she has been given notice of his or her compulsory retirement before 6 April 2011, and he or she is 65, or will reach 65, before 1 October 2011.
This means that, provided the draft regulations are not subject to further change:
- the last day on which an employer can issue a notice of retirement under the DRA provisions will be 5 April 2011
- as 12 months is the maximum notice of retirement that employer can give, the last day on which an employee can be compulsorily retired will be 5 April 2012
- the last day on which an employee can make a statutory request to his or her employer not to retire on the intended date of retirement will be 4 January 2012
- if an employer agrees to allow the employee to work beyond his or her intended day of retirement, the maximum extension possible within the DRA provisions is 6 months, thus the latest possible date for retirement will be 5 October 2012.
Any purported retirement dismissal notified from 6 April onwards will, if not objectively justified, amount to unlawful age discrimination under S.13 of the Equality Act 2010. According to legislation.gov.uk, the Department for Business, Innovation and Skills will be making the draft regulations available for offical publication on 4 March.