The controversy over the right to request to retire or not to retire have been a concerned to journalists in the United Kingdom, however during the past few hours, media practitioners have been made to understand that ‘if you are an employee you have a statutory right to request not to retire’. This is accordance with the (Employment Equality (Age) Regulations 2006).In a communiqué addressed to journalists it is now been confirmed that when an employee's contract is brought to an end by reason of retirement, this will be a "dismissal" and will only be unfair if the employer has failed to follow the" notification" or "right to request" procedures.
As a matter of fact therefore the law sets out the circumstances in which an employee will be deemed to have been dismissed by reason of "retirement”. They are set out in the new sections 98ZA to 98ZFofthe ERA 96, which were introduced by the age equality regulations (see Chapter 6).
An employee will be found to have been dismissed for reason of retirement if: s/he is aged 65 or over, the employer has given six to 12 months' notice of the intended date of retirement and her/his right to request working beyond it, and the contract ends on that date; or the employer has set a normal retiring age below 65 which can be objectively justified and the employer has reached that age, the employer has given the relevant notice of the retirement date and right to request working beyond it, and the contract ends on that date. In any of the above circumstances, the dismissal will be automatically fair.
The reason for dismissal or removal from office will not be retirement if: the employee is dismissed before the normal retirement age or before their intended date of retirement; or
s/he is under 65 and there is no normal retirement age, or there is a normal retirement age but it cannot be justified.
In those cases, the employer will have to show one of the other fair reasons for dismissal (see page 180) otherwise the dismissal will be unfair. In other circumstances, there may still have been a retirement, but it will be for a tribunal to decide, taking into account when notice of retirement was given and whether the employer complies with its duties under the "right to request" procedure.
An employee who is dismissed on grounds of "retirement" will only have been unfairly dismissed in very limited circumstances (section 98ZG, ERA 96). If the employer has failed to do any of the procedures, the dismissal will be automatically unfair and there is a minimum basic award of four weeks' pay: notify the employee of their intended date of retirement up to two weeks before retirement; consider the employee's request not to be retired (which includes holding a meeting, unless this is not reasonably practicable); or consider an appeal against a decision to refuse a request to continue working.
If the employer has not notified the employee six to 12 months in advance of their retirement date but has notified them at least two weeks beforehand, the dismissal may still be unfair but not automatically so. In that, case it will be up to a tribunal to decide.
The notification procedure is between six months and one year before retirement, the employer must notify the employee in writing of: their intended retirement date; and their right to request working beyond that date.
However if the employer does not do this, the employee can bring a claim in an employment tribunal for a failure to notify and the tribunal can award compensation of up to eight weeks' pay (capped at the maximum weekly amount, which is £310 for 2007/08). This claim can be brought whether the dismissal is fair or unfair.
An employee has a statutory right to request not to retire and can propose that their employment continues either for an indefinite period or for a certain length of time, or until a certain date. This request must be made in writing, and should specify that they are making a request not to retire under paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006 (in Northern Ireland, under paragraph 5 of Schedule 5 of the Employment Equality (Age) Regulations (Northern Ireland) 2006).
The timing of the employee's request depends on when they have been notified of their retirement date: if they have been told this six to twelve months in advance, they must make the request between three and six months before the retirement date; and if they have had less than six months notice of their retirement date, or have not been given a date at all, they can make the request at any time in the six months before their retirement date.
Unless the employer has already agreed that the employee can continue working, the employer must hold a meeting to discuss their request. This must be held within a reasonable period unless this is "not practicable”, in which case the employer can make a decision without a meeting but must consider any representations by the employee.
The employer must give the employee written notice of its decision, which must be dated. If the request is refused, the employee has the right to appeal and the employer must inform him/her of this right.
Although employers do not have to give reasons for refusing a request, the conciliation service ACAS recommends that they should give reasons and should explain their retirement policy. ACAS also says that it is good practice for the employer to consider the positive reasons for granting a request (in particular, the savings to the employer in recruitment and training costs, and the retention of the employee's valuable experience and knowledge), and advises employers to avoid making stereotypical assumptions about older employees' capabilities.
An employee has the right to be accompanied at these meetings by a worker or trade union representative employed by the same employer. Unlike in grievance and disciplinary hearings, an employee does not have a legal right to be accompanied by an external union official.
If the chosen companion cannot make the time suggested and the employee proposes an alternative time, the employer must rearrange the meeting to that time as long as it is convenient to the employer, employee and companion and is within seven days of the original suggested time.
The retirement date is not set in stone once notification has been given; employees can negotiate a different date if they change their mind. This important message to journalists is very essential as it set records straight to one of the most vital questions from all quarters about the right to retirement and so far there is no other report or reports claiming the contrary.
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