The saga of the “default retirement age” rumbles on. At present, an employer can require an employee to retire at age 65, assuming he follows the correct procedure. Although the employee can request to stay on, the employer can refuse that request and need not give a reason for doing so. Such a dismissal will be deemed to be “fair”. The prolonged “Heyday” litigation, which sought to challenge that position as unlawful, concluded last year with the challenge being defeated. Nevertheless, the Government is proposing currently to change the law. It seems likely that the "default retirement age" of 65 will be abolished altogether (rather than being increased to a higher age).
If the default retirement age is abolished, employees will be able to claim unfair dismissal if their employment is ended, whatever their age, and the employer would need to show a reason for the dismissal in the normal way. If the real reason was age, then the dismissal is likely to be unfair and discriminatory. It is possible that there will be exceptions to the general rule, but the Government’s final position is awaited.
There is likely to be resistance from employers’ bodies to the idea of employees being able to “work until they drop”, but can it really be legitimate to force employees to retire against their will, if society is genuinely committed to equality for all? Employers will of course still be able to justify dismissal of employees who are unfit or incompetent in the normal way.
Food for thought! In the meantime, this may be a good time to review your equal opportunities policy and consider issues of age diversity in your workplace.
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Caroline Carr
(Information posted in February 2010 and may not have been updated at time of reading).