Working beyond retirement age – mean what you say

An ET has held that employers must genuinely consider employee requests to work beyond retirement, and a sham process will amount to an unfair dismissal.

The Age Regulations 2006 place a duty on employers to consider any request made by employees to carry on working past the default retirement age of 65 (which will be removed next year).  This duty is now contained in the Equality Act.  The wording does not require a reasoned decision to be provided by the employer when a request is refused, but a recent ruling determined that a sham procedure was not acceptable, and the notion of considering a request ‘in good faith’ is implicit in the regulations.

The Tribunal concluded that employers must meet with employees with an open mind so that the employee’s representations can be considered in a genuine sense.  In the case before the Tribunal the meetings were considered to be meaningless formalities and so the dismissal was unfair.  The employee was awarded compensation of £16.173.46, which included a compensatory award based on a loss of two years’ pay.

It had been widely accepted that the ‚Äôduty to consider‚Äô procedure only involves ‘tick-box’ requirements and does not impose any substantive obligation on employers to consider requests on an individual basis.¬† The outcome of an Appeal will throw further light on the issue but in the meantime, caution is advised.