Can you retire employees at the age of 65? (From York Press)

Can you retire employees at the age of 65?

3:31pm Tuesday 3rd November 2009 in

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The answer (for now) is ‘yes’. In the recent case known as the “Heyday Challenge”, the High Court has decided that the UK’s Default Retirement Age (DRA) of 65 is still lawful.

No doubt many employers will breathe a sigh of relief. However, as a result of this case, the Government has brought forward the date for review of the DRA from 2011 to 2010, when it is believed that it is more than likely that the default age will either be raised or abolished altogether.

Help the Aged and Age Concern, who brought the case, argued that the regulations brought in by the Government in 2006 did not comply with the European directive against discrimination. However, the High Court did not agree, and said that setting the DRA at 65 was proportionate to the social policy objectives (in 2006). However, the judge added that he could not presently see how 65 could remain as a DRA after the review. No doubt this is because the economic climate has changed dramatically since 2006. The recession, and the Government’s efforts to deal with it, have had a huge impact on the value of savings and pensions, meaning retirement is not necessarily the best or most affordable option.

This makes the right to request to work beyond the age of 65 even more valuable to older people.

In the light of such developments, you need to be aware and keep up to date with the statutory retirement provisions. Even though you can currently retire employees at the age of 65 it is important that you follow the statutory procedure. This means that you have a duty to notify the employee (in writing) of the date on which you intend to retire him or her. This must be done at least six months (but no more than 12 months) before the employee’s retirement date.

The letter must also inform the employee of his/her right to request to work beyond the intended date of retirement.

Should an employee wish to work beyond their retirement date they must make such a request, in writing, at least three months before the due date. Also, they must confirm whether they wish to continue work indefinitely, for a stated period or until a certain date. You must consider such a request and should discuss this with the employee concerned (although you are under no obligation to agree to such a request). Do be careful if you give reasons for rejecting a request to ensure that any reasons given are not in themselves discriminatory. Finally, if a request to work beyond retirement is rejected, an employee does have the right to an internal appeal to the employer, which you must consider.

Gillian Markland is head of employment law at Ingrams Solicitors.