Due to the default retirement age of 65 being abolished from 1 October 2011 this case will only be of interest to employers who have already served notice of retirement on employees. In the case the appellant employer appealed against a decision that they had unfairly dismissed the respondent employee by retiring him without giving genuine consideration to his request to work beyond retirement. The employee had been given written notice of his employer's intention to retire him on his 65th birthday, and also notification of his entitlement to request an extension of his employment. However, having duly made the request, his application was refused without reasons, the company having a no exceptions policy of refusing such requests for extensions. His subsequent appeal was also dismissed without reason, resulting in his employment being terminated on his 65th birthday. The employee brought claims in the Employment Tribunal ('ET') for unfair dismissal and age discrimination. The ET upheld the claim, finding that the employee had been unfairly dismissed on the basis that his employer had breached their obligations under the Employment Equality (Age) Regulations 2006 (Sch.6, para 7 and 8) because they had not given genuine consideration to the request. The employer argued that the ET had misdirected itself by wrongly creating a requirement that the duty to consider a request had to be undertaken in good faith, and subsequently appealed to the EAT. The EAT dismissed the appeal, agreeing with the decision of the tribunal. It held that a duty to 'consider' a request to work beyond retirement had to imply an obligation to consider the request in 'good faith', in the sense that it should be genuinely considered. The policy of not agreeing to exceptions was in principle legitimate, but the refusal to consider exceptions in this case made it an inflexible rule, meaning the employer had failed to meet the request with an open mind and consider it genuinely. The ET and EAT both agreed that the 2006 Regulations do not require employers to provide reasons for refusing a request, all they need to do is ensure requests are given genuine consideration; i.e. by ensuring that the outcome of such applications is not pre-determined. An employer who provides a blank refusal to consider such requests will run the risk of being liable to a claim for unfair dismissal. For additional information please contact Alexandra Dean of Gepp & Sons on 01245 493939. The above is not legal advice; it is intended to provide information of general interest about current legal issues.
