Will you still need me, will you still want me, when I'm sixty five?

For many employers, the answer to the question (almost) posed in the Beatles’ song is that employers will soon not be able to retire employees at the age of sixty five whether they think they need them or not. As you know, the government has announced that the Default Retirement Age (DRA) of sixty five is to be phased out between the 6 April 2011 and the 30 September 2011. The draft Employment Equality (Repeal of Retirement Age) Regulations 2011 have now been published.

After the 6 April the dismissal of older workers will have to be managed either by discussion and agreement or by formal performance management or other fair procedures. Under the current DRA procedures employers must give between 6 and 12 months’ notice of retirement. Retirements notified on or before 5 April 2011 can continue through to completion provided that the following conditions are met:
· the DRA procedure is followed correctly (including any request by the employee to stay on being given serious consideration by the employer)

· the person retiring reaches 65 or the normal retirement age (if this is higher) before 1 October 2011. Therefore an employee must be 65 by the 30 September if they are to be retired using the DRA.

Employers will not be able to issue notifications of retirement using the DRA after 5 April 2011. Reports that the transitional provisions will continue until April 2012 do not appear to be supported by the ACAS website or the draft regulations. The draft regs seem to imply that employees who are already over 65 are not covered by the transitional provisions, but hopefully that anomaly will be ironed out before they come into force.

In theory, Employers will still be able to impose a retirement age if it is a proportionate means of achieving a legitimate aim. However this is unlikely to be any help for the vast majority of employers (air traffic controllers and policemen being examples of exceptions).

The abolition of the DRA is likely to have a major impact on many employers, particularly when employees do not have adequate pensions in place and may need to continue working for financial reasons. Currently, employers may put up with under-performing members of staff because they will be retiring in a year or two anyway. That will no longer be an option. ‘Performance managing’ someone out because of their age is of course unlawful, so employers will need to demonstrate that they apply fair and consistent performance policies regardless of age. Selection for redundancy on the basis of age is also likely to be discriminatory.

Hopefully in the vast majority of cases it will still be possible to agree with the employee when they wish to leave, and ACAS suggests that for all employees, workplace discussions may involve informal talks about where they see themselves in the next few years and how they see their contribution to the organization. However the abolition of the default retirement age may well bring about more conflict for employers of older workers that the current regime successfully avoids.

Matron Really!

There are some newspapers that love to publish examples of ‘political correctness gone mad’, and the employer’s decision in Bowater v NW London Hospitals NHS Trust might be thought to justify the phrase. Ms Bowater, a staff nurse, volunteered to help restrain a patient who was having a fit and who happened to be naked. She ended up straddling him, at which point she uttered words which would do credit to any Carry On film, saying ‘it’s been a few months since I’ve been in this position’.

Six weeks later the unfortunate Ms Bowater was dismissed for gross misconduct. She had a spotless disciplinary record, and no member of the public, nor the patient, knew what she had said. The Employment Tribunal said that she had been unfairly dismissed, commenting that a ‘large proportion of the population’ would have considered her words to be merely humorous.


However the EAT held that the dismissal was fair, and that it was irrelevant what a ‘large proportion of the population’ might have thought. The Court of Appeal has now restored the Tribunal’s finding of unfair dismissal and said that the Tribunal had correctly applied the ‘band of reasonable responses’ test. The Trust had accepted that the comment was intended to be humorous, and the Tribunal had been aware of the context. The Tribunal had not impermissibly substituted its own view of a dismissal for that of the employer.

www.reculversolicitors.co.uk
www.kent-employment-solicitors.co.uk

1st February 2011 Changes

 As a reminder, don’t forget that from the 1st February:

• The cap on a week’s pay for the purposes of calculating statutory redundancy pay will go up from £380 to £400 gross per week
• The maximum compensatory award for unfair dismissal will rise from £65,300 to £68,400
• The minimum basic awards for dismissals related to health and safety, employee representative, trade union, or occupational pension trustee reasons will increase from £4,700 to £5,000.