Retirement 





Employers no longer have a statutory right to compel employees to retire, at 65 or any other age. Employers who want to retire their workforce on reaching a certain age can only do so by agreement (usually recorded in the contract of employment). If there is a recognised union at the workplace, setting this age should be a matter for collective bargaining.




Even if there is a contractual retirement age, that is not the end of the matter. There will be age discrimination unless the employer can objectively justify that retirement age as a proportionate means of achieving a legitimate aim.
The employer’s statutory right to compel retirement at 65 was removed by law with the abolition of the default retirement age in April 2011.




In Seldon v Clarkson Wright and Jakes No.1 [2012] UKSC 16, the Court identified two broad categories of “public interest” aim that can justify a discriminatory retirement age. These are:




• aims that promote intergenerational fairness: helping young people to access the workforce and progress, enabling older workers to plan for retirement, sharing promotional opportunities between generations, facilitating workforce planning, promoting diversity and the exchange of ideas and experience, and recognising that older workers have already benefited from the retirement of older ex-colleagues; and 





• aims that promote dignity: avoiding the need to dismiss older workers on grounds of incapacity or under-performance. National charity Age UK has pointed out that this aim is itself based on outmoded stereotypical assumptions about the performance of older workers.





Protecting the health and safety of workers and the public is a legitimate aim, but stereotypical assumptions must be avoided and where there is a choice, the least discriminatory policy must be adopted, for example, regular health check-ups. 


An employer can be challenged (by the recognised trade union if there is one) to produce hard evidence explaining why the chosen retirement age is needed in its workplace. Here are some important factors to bear in mind in any consultation: 


• the needs of the disadvantaged group should be considered. A change is more likely to be reasonable where those affected get time to plan ahead (European Commission v Hungary [2012] EUECJ C-286/12);


• a retirement policy negotiated through collective bargaining is more likely to be judged proportionate than one that is imposed (Seldon No.1, Loxley v BAE Systems (Munitions & Ordinance) Limited [2008] ICR 1348);





• the availability of an adequate pension is important (Rosenbladt v Oellerking Gebaudereinigungsges mBh [2010] EUECJ C-45/09); and





• a reasonable policy should provide a right to request not to be compulsorily retired. 





In June 2014, the right to request flexible working was extended to all employees with 26 weeks’ service. This development is useful for employees planning retirement. For more information, see Chapter 9. 






“Flexible retirement” is supported by the TUC and the Chartered Institute of Personnel Development. In some workplaces, unions have negotiated flexible retirement agreements. For examples, see the LRD booklet Representing older workers — a guide for trade union negotiators (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1676).