In the current economic climate, the question of when to retire may be one that has more pressing economic considerations for employees in Northern Ireland than in previous years.
Changes to the retirement process have been introduced following the commencement of the Employment Equality (Repeal of Retirement Age Provisions) Regulations (Northern Ireland) 2011. From 6th April 2011, employers have no longer been able to issue retirement notices to their employees.
These new Regulations will have implications for employers and employees across Northern Ireland, such as, for example, employees will be able to work beyond the age of 65, until they choose to voluntarily resign or until such times that an employer is compelled to dismiss them on the grounds of incapacity, misconduct, or redundancy i.e. the usual kinds of grounds that might justify the dismissal of any employee, regardless of their age. Any dismissal must follow the statutory dismissal and disciplinary procedures laid down by the Employment (NI) Order 2003.
- As of the 6th April 2011, employers are no longer able to issue any notifications for compulsory retirement using the previous Default Retirement Age procedures.
- Between 6th April and 1st October 2011, only those employees who received notification for compulsory retirement before 6th April, and whose retirement date is before 1st October 2011, can be compulsorily retired using the DRA procedure.
- After 1st October 2011, employers will not be able to use the DRA to compulsorily retire employees.
However, should an employer retain a compulsory retirement age, he will be required to objectively justify this, otherwise, it may be unlawful. An Employer Justified Retirement Age (EJRA) will be considered lawful where an employer can show that it is a proportionate means of achieving a legitimate aim. This will be a high threshold. An example of this might be where it is required to ensure that employees are competent to perform their duties, or to protect the health and safety of service users. Employers should be prepared to back up their justifications with evidence, and show that consideration was given to other, non-discriminatory or less discrminatory alternatives. Justification will also be required on a case by case basis. If the retirement is objectively justified the dismissal will be deemed to be for “some other subtantial reason” under the Employment Rights (NI) Order 1996.
A dismissal based on retirement may constitute direct age discrimination and/or unfair dismissal. Employers should ensure that they familiarise themselves with the provisions of the new Regulations to make certain that any retirement procedures that are in place are not discriminatory. Employers should, if necessary, undertake a review of existing contracts and policies to ensure compliance with the new Regulations. Employers should further ensure that all their dealings with their employees are fair and consistent, regardless of the age of any workers.
Retirement will no longer be a fair reason for dismissal, so if an employee feels that he/she has been dismissed unfairly, he/she may have recourse to take their claim to an industrial tribunal. Employees should also be aware that the removal of the DRA procedures will not affect their state pension age and entitlements, which can be separate from their retirement age.
For more information on retirement age, contact your local CAB or see www.nidirect.gov.uk.
Sian Fisher is an Information Officer with Citizens Advice.