The draft Regulations abolishing the Default Retirement Age (DRA) are reported to have been laid before Parliament on 16th February 2011 and are expected to come into force on 6th April 2011 although they are yet to be considered by the Joint Committee (and so could change). The draft Regulations have now been reported however they contain a serious drafting anomaly in relation to the transitional provisions.
It was understood from the Government’s response to its consultation on abolishing the DRA, and from guidance published by ACAS, that an employer who gave notice to an (applicable) employee of their intended date of retirement before 6th April 2011 so that retirement would take effect before 1st October 2011 would be doing so lawfully.
However, the drafting of the draft Regulations has the effect of precluding employers from retiring an employee unless they reach 65 years of age (or, if higher, the normal retirement age) between 6 April 2011 and 30 September 2011. If left unrectified, notices of retirement already given to an employee who has already reached the age of 65 may become invalid as the relevant age condition within the Regulation is not met.
In short the previous position that employees who are already 65 can be lawfully retired provided they are notified of their intended retirement date before the end of March 2011 and retirement takes effect before October 2011 has changed on the strict wording of the draft Regulations and therefore the retirement of any employee who is aged 65 before 6th April will now attract unfair dismissal and age discrimination liability.
There may be time for the position to be corrected but failing that, it may be necessary to revisit notices of retirement that have already been issued and consider bringing the intended retirement date forward to before 6th April but this in itself will attract separate liability for a breach of the notice provisions.
Further updates on this matter will follow as and when reported by the Government