The Court of Appeal has confirmed that employer notices to retire employees under the old statutory default retirement age regime given prior to 6 April 2011 are invalid if they do not expressly state that the employee's right to request continued working is pursuant to paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006.
However, it disagreed with the EAT ruling that the employer's notice should also clarify that any request made by the employee must also expressly state that it is made under paragraph 5.
The decision is relevant to employers with pending cases on this point, and to those who gave notice of intended retirement prior to 6 April 2011 but where the retirement has not yet taken place under the transitional provisions. Of course it is no longer possible to remedy defective notices.
Retirements using an invalid notice that took effect before 6 April 2011 will be automatically unfair but, assuming the tribunal finds the reason is still retirement, not unlawful age discrimination. Compensation may therefore be limited to the basic unfair dismissal award plus up to 8 weeks' pay for breach of the procedure.
Where invalid notices have been given before 6 April for retirement dates after 6 April 2011, the transitional provisions for the statutory retirement regime will not apply. The dismissal will therefore be unfair and probably also unlawful discrimination, unless the employer can objectively justify it. (Bailey v R & R Plant (Peterborough) Ltd, CA)