Abolition of the Default Retirement Age – Draft Regulations Published

Posted: 18th February 2011

The Government has now published draft regulations abolishing the Default Retirement Age (DRA) of 65, which was introduced by the Employment Equality (Age) Regulations 2006.
The Employment Equality (Repeal of Retirement Provisions) Regulations 2011 are due to come into force on 6 April 2011. This means that the last date on which an employer can lawfully carry out a retirement dismissal using the statutory DRA provisions laid down by the 2006 Regulations is 5 April 2011.After that date, it will no longer be lawful to compulsorily retire an employee on the grounds of age unless the dismissal can be objectively justified as a proportionate means of achieving a legitimate aim.
Under the DRA provisions, employers must give a minimum of six months’ notice of retirement but no more than twelve months’ notice. Previous announcements had suggested that, under the transitional arrangements for phasing out the DRA, all retirements would have to take effect by 30 September 2011. This is not the case, however. Retirements notified on or before 5 April 2011 can continue to the end of the given notice period, provided certain conditions are met. These are:
  • the statutory procedures set out in the 2006 Regulations must be followed. These include notifying the employee that he or she has the right to request to continue working beyond either the default retirement age –
or the normal retirement age where your business has in place a higher normal retirement age. Employers have a duty to give serious consideration to such a request; and
  • the employee must turn 65 or reach the higher normal retirement age between 6 April and 30 September 2011.
The draft 2011 Regulations also repeal the provision allowing short (two weeks’) notice of retirement. Short notifications will therefore no longer be permitted on or after 6 April 2011.
One difficulty is that the wording of the draft 2011 Regulations, whereby an employer can only retire an employee who turns 65 between 6 April and 30 September, would seem to exclude the possibility of retiring employees who are already over 65 before 5 April 2011. It is possible that this is a drafting error as it would mean that employees who have already been given notice of retirement because they are aged 65 or over could not legally be retired after 6 April. We will advise you accordingly as soon as the Government’s position on this issue is clarified.