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Mincoffs Solicitors LLP
5 Osborne Terrace
Newcastle upon Tyne
Telephone: 0191 281 6151
Fax: 0191 281 8069
DX Address: 62550 JESMOND
No more compulsory retirement?
It has now been over a year since the default retirement age (DRA) of 65 was abolished on 6 April 2011.
It is now unlawful to dismiss an employee because of their age unless there is an “objective justification” for doing so. In addition, Employers are now faced with either abandoning fixed retirement ages; or keeping a fixed retirement age but the basis that these ages can be “objectively justified” under the law.
There is no doubt that this a difficult new area for Employers to manage especially when traditionally it was still possible, prior to the DRA being abolished, to fairly manage the numbers within its own workforce by way of lawful retirement.
The age of compulsory retirement appears therefore to be at an end. It could now soon be a fact of working life that everyone (as well as living longer) seeks to work for a longer period of time both to ensure that they have the necessary quality of life in retirement; and also because of this significant change in the law affords them that right to do so.
Mutually agreed retirement may therefore well become the norm although compulsory retirements can still take place as long as they can be “objectively justified”.
The demonstration of “objective Justification” for compulsory retirement remains a relatively new area in employment law.
To begin with there must be a clear justification from the Employer for the decision to retire. This will involve identifying a legitimate aim and demonstrating that the method used to pursue that aim was proportionate. Without such clear legitimate aims and proportionate means, the Employer could face a combined unfair dismissal and age discrimination claim at the Employment Tribunal.
The indications are that the Tribunals and courts will approach issues of justification by reviewing both the working practices at the Employer as well as their specific business concerns and considerations. For example, positions in the emergency services may require a specific and high level of fitness whilst other occupations such as airline pilots or air traffic controllers may require a high standard of both mental and physical ability.
Further, for a method to be proportionate it has to relate to a real business need of the Employer and then meet that particular need and then go no further than is required in achieving that need. Therefore it is necessary for Employers to identify and explain the particular method; consider any alternative and apply the method consistently.
As more decisions are made by the Tribunals and Courts it is hoped that further clarity and guidance will be provided for both Employers and Employees on what amounts properly to “objective justification” when it is applied to compulsory retirement.