In a previous bulletin we reported that the Default Retirement
Age is likely to be phased out between April and October 2011. As a
result, many employers are taking steps now to retire employees
aged 65 or over under the current, more favourable regime. However,
the current regime has come under the spotlight in a recent
case.
Currently, an employer must follow the Statutory Retirement
Procedures set out in the age discrimination legislation to avoid
claims of unfair dismissal and age discrimination. The prevailing
view has been that these procedures were merely a "tick box"
exercise and there is no requirement for an employer to complete
these procedures in good faith. This is a view that has been
approved in a number of Employment Tribunal cases including the
Scottish case of Gibb v Dundee College earlier this year. However,
this approach has been cast into doubt by a recent decision of the
London Employment Tribunal in the case of Ayodele v Compass Group
plc.
In Ayodele the Employment Tribunal held that the Statutory
Retirement Procedures would be breached if the employer approached
an employee's request not to retire with a closed mind. It held
that "sham process or a mere charade" would not comply with the
legislation, and that there was an implied obligation to complete
the process in good faith.
This decision is being appealed to the Employment Appeal
Tribunal and the outcome of that will be important. In the
meantime, employers would be well advised not to give retiring
employees the impression that an application to continue working
past age 65 has not been considered in good faith and with an open
mind.
If you would like to know more, Sandy Kemp will be discussing
the issue of retirement at our Employment Law Roadshow in Glasgow
on 25 November 2010. To obtain more details, or to apply to attend,
please contact Celia Lauder at celia.lauder@simpmar.com.