Amendments Made to Employment Equality Regulations 2011

Following on from my original blog of 22 February, a revised draft of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 has now been released following the concerns raised regarding the previous draft.

The main concern raised by practitioners was that according to the first draft, if an employee was over 65 on 6 April 2011, even if he had already been given notice of retirement to take place after that date in accordance with current legislation, the employer would not have been lawfully entitled to retire that employee unless the retirement age could have been objectively justified. This has now been corrected and as long as the employee has been given notice of the employer’s intention to retire them by 5 April 2011 and the employee is 65 or will be by 30 September 2011, they can be retired lawfully on the grounds of retirement.

To comply with the current legislation, an employer has to give a minimum of 6 and a maximum of 12 months’ notice of its intention to retire so it would appear at first that the last date an employer can retire an employee under the current legislation is 4 April 2012 (12 months from 5 April 2011). However, the legislation enables employers, following a request from the employee (which must be at least 3 months before the intended retirement date), to postpone a retirement date by up to 6 months and then to compulsorily retire the employee on the new date without taking any further procedural steps Therefore if, on 5 April 2011, an employer gives 12 months’ notice of intention to retire an employee on 4 April 2012, it could agree an extension up to 3 October 2012 without the need to give any further notification and can retire the employee under the current legislation.

The Regulations are certainly not straightforward! If any employers are unsure how they will apply to their current employees they should contact Lanyon Bowdler’s employment team for further advice.