[Thanks to www.emplaw.co.uk for discovering the new Regs, and to Darren Newman of Inco Training for explaining them to me]
The Department for Business, Innovation and Skills has issued a second set of draft Regulations which repeal the default retirement age.
The draft Employment Equality (Repeal of Retirement Age) Regulations 2011 correct the drafting errors in the original version, but in fact go further and are fiendishly complicated.
In summary, they provide:-
- employees can be lawfully retired provided (a) notice of intention to retire is given by 5th April 2011; and (b) the employee has attained, or will attain, the age of 65 by 30th September 2011 (reg 5(1));
- there is a deadstop of 5th January 2012 for an employee to exercise his/her right to request to work beyond retirement (reg 5(4)(b)). This enables an employee who is given 12 months' notice of intention to retire on 5th April 2011 (the last day) to exercise his right to request on the last day available (which, under para 5(5) of Schedule 6 to the Employment Equality (Age) Regulations 2006, is three months before the employer's notice runs out).
- in theory, an employer could agree a fixed or indefinite period of working beyond retirement if an employee makes a request. But if it agrees an extension of more than six months, it will have to issue a fresh notice of intention to retire (see para 3 of Schedule 6 to the Age Regulations 2006) - which it cannot do after 5th April 2011. So, in practice, this means the last possible date for retirement of an employee under the existing law seems to be 3rd October 2012. This would cover the employee who was given 12 months' notice of intention to retire on 5th April 2011 (the last day possible), taking him to 4th April 2012, and then given the maximum six month agreed extension which can be given without a fresh notice of intention to retire (going to 3rd October 2012).
In Darren Newman's words: "Emergency over. Everything is (basically) fine. Move along now."
Finally, I understand from the Employment Law Clinic that these draft Regulations are going to be subject to the affirmative procedure in parliament - meaning that it is possible for them to be in force by 5th April 2011. Most draft SIs require a 40 day period before they come into force, which would cause difficulties here since there are less than 40 days before they are due to come into force.
As always, the best way to keep up to date on this subject is via the employment law feed (#ukemplaw) on twitter. This link will take you straight there.