What impact has the removal of compulsory retirement had since 2011?

Before 2011, employers were allowed to retire their employees at 65 as long as they followed the correct procedures. From 1st October 2011, employers were no longer given the right to retire an employee at 65. However, employers were given the opportunity to retain a compulsory retirement age if they could justify doing so. During this period, employers were concerned that the removal of the compulsory retirement age would lead to older workers being dismissed on performance grounds, therefore, removing the dignity that they deserve at the end of their career. It has now been 5 years since the removal of the compulsory retirement age. Let's take a look at the issues this has raised in employment law.

• How managers are addressing the possibility of retirement Since the removal of the compulsory retirement age, a number of employment tribunal claims revolve around the fact that management have placed inappropriate pressures on employees to retire. In the case of Dziubak v LX Engineering (North) Ltd a senior project manager (the claimant) was coming up to his 65th birthday. The managing director would say things like: “You’re coming up to your 65th birthday. You’re going to be retiring, aren’t you?” and “It would really help me if you retired.” The claimant was then made redundant. Following this, he brought claims for age discrimination and unfair dismissal. The tribunal held that the managing director’s comments were strong evidence of an ageist motive for the claimant’s redundancy.

• How managers are managing the performance of older workers One main concern for employers in 2011 was that they were going to have an enormous extra task of managing the performance of their older employees. Problems have usually occurred where employers have used poor performance as an excuse to get rid of the older employees. In the case of Dove v Brown & Newirth Ltd a 60-year-old customer assistant was dismissed after management suggested that customers were not happy with his “old-fashioned” approach. During the lead up to his dismissal, accounts were gradually taken away from him and given to younger account managers. The employment tribunal held that he was dismissed because of his age and awarded him over £63,000.

• How management are justifying keeping the retirement age After the removal of the compulsory retirement age in 2011, employers were given the opportunity to retain this right if they could justify doing so. Employers who have retained the default retirement age have generally been those where high levels of fitness are required, or where there are safety concerns etc. In 2013, XpertHR’s survey suggested that most employers did not keep their retirement age. The survey showed that only 4 out of 138 respondent employers (3%) retained the compulsory retirement age. This clearly suggests that the employer-justified retirement age has not been a major issue that some were expecting.

• How mangers are dealing with the cost of keeping older workers until they retire There have been a number of cases heard in the employment tribunal where employers have taken the decision to dismiss an older employee in order to save money. In the case of Woodcock v Cumbria Primary Care Trust, the trust timed the redundancy of a senior employee so that he would leave before becoming entitled to at least £500,000 by taking early retirement. The senior employee brought a claim for age discrimination. The Court of Appeal rejected his claim and held that the trust was saving a huge amount of money and had previously bent over backwards to keep him on for as long as it did.

• How managers are handing flexible working for older workers Previously the right to request flexible working was only applied to parents and careers. However, since 2014, this right has been extended to all employees.

Now that a couple of years have passed since this right was extended, we will see older employees changing their working schedules, especially in the run up to retirement.