What is the “duty to consider” procedure?

· Under the regulations, employers are allowed to retire their employees at age 65 or above; or, if they can objectively justify it, at a lower retirement age than normal.

· Employees have the right to request to stay on in their job after their employer’s retirement age. However, an employer can refuse the request and does not have to give a reason for refusal. It is only possible to challenge the employer’s decision if they have not followed the correct procedure.

Stage 1
Employers must give a minimum of 6 months’ and a maximum of 12 months’ notice of an employee’s retirement date and must tell them that they have the right to request to continue working.

Stage 2
If an employee requests to continue working beyond the retirement date, the employer has a duty to consider the request. The request must be submitted in writing 3 to 6 months before the intended retirement date.

Wording of the letter:

“I am writing to request not to retire on your intended date of [insert employer’s intended date of retirement]. I am making this request under paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006.

I propose that my employment should continue [specify one of the following]:
Indefinitely
For [insert specific period e.g. 12 months]
Until [insert specific date]

I look forward to hearing from you with your suggested time for a meeting to discuss my request.”

The letter may also include information to support the request, such as how continuing to work will also benefit the organisation.

Stage 3
The employer must hold a meeting to discuss the request with the employee, within a reasonable time period. The employee is entitled to be accompanied to the meeting by a colleague of their choice.
The employer must then notify the employee of their decision within a reasonable period of time, and if they agree to the request, must let the employee know whether the arrangement is indefinite, or for a certain period.

If the request has been refused, the date of retirement must be confirmed, and the employer must inform of the right to appeal.

Stage 4
If the request is refused, or the employer agrees to a shorter period than requested, the employee has a right to an appeal meeting. If the employee wishes to appeal, they must inform their employer as soon as is practical after receiving their decision, setting out the grounds of appeal.

The employer must arrange a meeting within a reasonable time period and again, the employee has the right to be accompanied by a colleague of their choice.

Stage 5
As soon as is reasonably practical after the appeal meeting the employer must give notice of their decision (giving details as in stage 3).

If the employer fails to notify the employee up to two weeks before the retirement date, the employee can claim compensation of up to eight weeks’ pay (with a cap on the weekly pay). If less than two weeks notice is given, the retirement is automatically an unfair dismissal.

A forced retirement will not be unfair dismissal if:
An employee is over 65 (or the employers retirement age, if higher)
or
The employer follows the correct procedure outlined above

A forced retirement will be unfair dismissal if:
An employer does not follow the procedure above

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