At Work: Human Resources - It's the law - Age discrimination, part 3

Emma Burrows, partner and head of the employment group at Trowers & Hamlins solicitors

Employers should get acquainted with new retirement procedures in the new age discrimination law.

Under the new age discrimination legislation, it is not discriminatory for an employer to set a normal retirement age of 65 or over, provided the employee is not retired before he or she reaches this age and is correctly notified.

Otherwise, the retirement may well be discriminatory, although a tribunal would also consider whether notification was given up to 14 days beforehand, the length of any notice period and whether the employer held a meeting with the employee.

It is more difficult if the employer wishes to have a normal retirement age under 65, because under the new regulations this will be age discrimination unless it can be objectively justified as being a proportionate means of achieving a legitimate aim.

When retiring an employee, an employer should use a set procedure to avoid any claims of unfair dismissal. First of all, the employer must write to the employee between six and 12 months before their retirement date, stating the date of retirement and informing them that they have the right to make a request to continue working after this date.

The employee can make such a request three to six months before the retirement date. This must be in writing and must indicate if the employee wants to continue working indefinitely or for a set period of time.

The employer is under a duty to consider this request and any representations made by the employee, and should hold a meeting with the employee, allowing them to be accompanied.

The employer may comply with the request, decide to continue employing the employee for a shorter period than requested or still require the employee to retire on the original retirement date. Whatever the decision, the employer must inform the employee in writing as soon as practicable, although the employer is not required to give reasons for the decision.

Finally, if the employee's request is refused, the employer must inform them of their right to appeal. If the employee appeals, a meeting should again be held and the employee informed of the decision in writing.

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