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Right to Request Not To Retire

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When informing an employee of his/her right to request to work beyond retirement, how much does an employer have to say? The Court of Appeal has answered this question in the test case of R&R Plant (Peterborough) Ltd v Bailey, upholding the EAT's decision last year.

Under para 2 of Schedule 6 of the (now defunct) Employment Equality (Age) Regulations 2006, an employer who was intending to retire an employee had to notify that employee in writing of (a) the employee's right to make a request; and (b) the date on which he intends to retire the employee. That letter triggers the employee's right to make a request not to be retired. If the employer fails to send that letter, then the dismissal will usually be unfair.

But what exactly does "the employee's right to make a request" mean? The Court of Appeal says (at paras 27 + 28) that it is not sufficient to simply state 'If you wish to continue working beyond this date, you are required to make an application to the company in writing'. The letter must do more. It must refer the employee to para 5 of Schedule 6, which sets out the obligation for the employee's request to be in writing "and state that it is made under this paragraph".

So a letter from an employer, notifying an employee that s/he has to ask in writing to work beyond retirement, is not sufficient under the old rules. It must go further and expressly set out that the employee has a right to request not to retire pursuant to paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006. If it does not say that, it is invalid and the dismissal will probably be unfair.