A revised second draft of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011, which abolish the default retirement age (DRA) of 65, have now been published and laid before Parliament and will come into force on 6 April 2011.  The amended version now corrects the drafting anomaly in the transitional provisions and makes it clear that the transitional arrangements will apply regardless of whether an employee’s 65th birthday is before or after 6 April 2011 (provided always that it is before 1 October 2011).

The last date for issuing a notice of intended retirement date under the current regime is 5 April 2011 and the employer can set the retirement date at any time up to 12 months later, provided six to 12 months’ notice of intended retirement is given, the statutory retirement procedure is followed correctly and the employee has attained or will attain the age of 65 on or before 30 September 2011.

The amended draft regulations also now contain a longstop date of 5 January 2012 for an employee to exercise his right to request to work beyond retirement.  This enables an employee who is given 12 months’ notice of retirement on 5 April 2011 to exercise his right to request on the last day available (which is three months before the employer’s notice runs out).

A note from the Government states that an extension of employment of up to six months can still be agreed during the transitional period through the statutory retirement procedure.  Any purported retirement dismissal notified from 6 April 2011 onwards will, if not objectively justified, amount to unlawful age discrimination under section 13 of the Equality Act 2010.  It is also likely to constitute an unfair dismissal.

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