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Duty to Consider Request to Work Beyond Retirement

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[Thanks to Naomi Ling of Outer Temple Chambers for preparing this case summary]

In the case of Ayodele v Compass Group, the EAT has held that a request to remain in employment after the age of 65 must be considered 'in good faith'. An employer may not rely on a blanket policy of requiring employees to retire at the age of 65; even if such a policy is in place (which is in itself permissible), it must approach requests to be allowed to continue working with an open mind.

Mr Ayodele was informed by his employer of its intention to retire him at age 65 and his entitlement to request an extension. He did so, but his request was refused without reasons, as was his appeal. He brought a claim for unfair dismissal and age discrimination. The employment tribunal upheld the Claimant's claim that he had been unfairly dismissed on the basis that the Respondent had not given genuine consideration to the request and was therefore in breach of their obligations under paragraphs 7 and 8 of Schedule 6 to the Employment Equality (Age) Regulations 2006.

Unusually, at first instance the Claimant gave evidence that there had been substantial discussion of his request, whereas the Respondent's witness asserted that he had already decided that the policy would apply rigidly and the meetings were only a formality. On the basis of the Respondent's account, the ET and EAT held that a duty to 'consider' a request necessarily connoted an obligation to consider in good faith, in the sense that an employer must genuinely consider whether it should be accepted. However, the EAT noted that it will usually be very difficult to show bad faith. No inference can be drawn from the refusal of a request, nor from the fact that a policy exists of not agreeing to such requests.