The Employment Equality (Repeal of Retirement Age) Regulations 2011 will come into force on 6 April 2011, subject to transitional provisions, and will apply to England, Scotland and Wales. A second draft of the Regulations has had to be issued due to drafting errors.
Commentators have observed that the second draft of the Regulations is more complicated and far reaching than the initial draft. The main changes to the draft Regulations are as follows:
• Employees can be lawfully retired provided that they are given notice of the intention to retire them by 5 April 2011 and the employee has reached, or will reach, the age of 65 by 30 September 2011 (Regulation 5(1));
• Employees have until 5 January 2012 at the latest (depending on the length of notice they are given and the date on which they are given it) to exercise their right to request to work beyond retirement (Regulation 5(4) (b)). This allows employees who are given the maximum 12 months' notice of the intention to retire them on the last day available (5 April 2011) the right to request to carry on working at any time up to 3 months before the employer’s notice runs out (thus complying with paragraph 5(5) of Schedule 6 to the Employment Equality (Age) Regulations 2006).
• An employer could still potentially agree a fixed or indefinite period of work beyond retirement at the request of an employee. However, if the employer agrees to an extension of more than 6 months, it will have to issue a fresh notice of intention to retire (in accordance with paragraph 3 of Schedule 6 of the 2006 Regulations) - which it cannot do after 5 April 2011. So, in practice, this means the last possible date for retirement of an employee under existing law appears to be 3 October 2012 (although there is some debate ongoing within the legal profession as to whether this should actually be 1 or 2 days later because of the way in which the relevant deadlines fall).
The main focus for employers who wish to retire employees who attain the age of 65 prior to 30 September 2011 remains the imminent 5 April 2011 deadline for providing the employee with notice of the intention to retire them.
If you have any queries, please do not hesitate to contact one of EMW LLP Employment specialists on 0845 074 2374.
www.emwllp.com
