Abolishing Retirement at 65 The Government announced in January that it would be abolishing the retirement age of 65 and the concept of compulsory retirement with effect from 1 October this year. Industry commentators and the national press have been divided in their views on this change. Some have forecast real difficulties for employers and employees and a substantial increase in the number of cases dealt with by Employment Tribunals. Others have said that the change is long overdue and that, properly managed, employers have nothing to be worried about. So what is actually happening? As things stand at the moment, if an employer wants an employee to retire on or after his 65th birthday, he has to give six months notice of retirement. The employee can object to the decision and the employer has to consider the objection. But, in the last resort, the employee has to retire if the employer decides that he should. That procedure is available until Wednesday 30 March. After that it will be withdrawn and new rules will be introduced. Under the new rules an employer has two options to retain a retirement age (either the existing age or another) and to seek to justify it if challenged. to remove the retirement age and continue without the ability to require an employee to retire at a given age.
Of these options the first is likely to be the more difficult to implement. There are two tests that an employer will have to pass. The first is that, in retaining a retirement age, he has a legitimate aim in mind and the second that he is using a proportionate means to achieve that aim. The best example of a legitimate aim is the health and safety of other employees or the general public. This is aimed at emergency workers and other employees for whom a significant level of physical fitness is required. Another example might be workforce planning (providing a clearly defined career path by ensuring the compulsory retirement of older workers). But in both cases an employer would also have to show that adopting a compulsory retirement age was a proportionate means of achieving his aim. This will involve producing evidence to support the chosen age - and the Government has made it clear that simply asserting that an age is the right age will not be enough. The second option (likely to be the easier) is to remove the retirement age completely. The approach that ACAS recommend is for an employer to ask his employees about their intentions in a process that ACAS describe as workplace discussions. One way of doing this would be to ask employees in their sixties to complete a short questionnaire, or ask them at a meeting, whether they wanted to retire or to remain at work and, if the latter, whether they wanted the employer to consider any changes to their duties. These discussions could take a similar format to appraisals and form part of the appraisal process. Difficulties will only arise in the case of the employee who is reluctant to retire in circumstances in which the employer believes that he should. In those circumstances the employer will have to rely on his performance management process: an employer is as entitled to dismiss an employee of 65 who cannot do the job as he is to dismiss a 45 year old or a 25 year old. The principal action points at this stage are therefore as follows: to use the current regime until it expires on 30 March. to consider retaining a retirement age in whole or in part - but remember that cogent evidence will be required to retain it - or remove it to review internal procedures for appraisals, workplace discussions and performance management. in any event staff will need to be told and contracts may need to be amended
If you have any questions in relation to the above or in relation to any other aspect of employment law, please contact Christopher Bromfield - christopher.bromfield@wansbroughs.com or 01380 733300. | 
