Working beyond retirement

At present employees have the right to request to work beyond retirement and employers have a duty to notify employees of this right and consider such requests.

Employers must notify their employees of their intended date of retirement and the employees may make a request to continue to work beyond that date; known as the "duty to consider" procedure.

There is no requirement for the employer to give its reasons if it refuses the request to work beyond retirement. Because of this, it had been considered that so long as the employer complied with the “duty to consider” procedure that would be sufficient. However, a surprising recent decision of the London Central Tribunal stated that the “duty to consider procedure” does not only consist of procedural requirements but must also be performed in “good faith”.

In this particular case, an employee had made a request to work beyond retirement after his employer notified him that it intended to retire him on his 65th birthday. During the “duty to consider” procedure the company’s HR Officer made it clear that it was the company’s policy to retire people at 65 and that there would be no exceptions to this rule.

When the employee reached the age of 65 he was dismissed; he subsequently brought a claim for unfair dismissal. The tribunal found that although he had been dismissed for a fair reason (by reason of retirement) the dismissal itself had been procedurally flawed and thus was unfair. The tribunal acknowledged that the wording in the rules suggested that a summary process is permissible but said that a completely sham process or a charade did not comply with the letter or the spirit of the legislation. Accordingly, the employee was awarded two years’ loss of earnings which related to the period he wanted to continue working after reaching his 65th birthday.

This Tribunal decision is not binding on other Tribunals but it would be advisable for employers who are considering retiring employees to make sure that their “duty to consider procedure” is genuine and that the decisions they make are not a “done deal”.

From 1 October 2011 the default retirement age and the statutory retirement procedures will be abolished.

For information about any aspect of employment law, contact Reggie Lloyd at Birkett Long LLP on 01206 217347 or reggie.lloyd@birkettlong.co.uk