The Government has now published regulations setting out the transitional provisions for phasing out the default retirement age (DRA) of 65 from 6 April 2011. The Regulations come into force on 6 April 2011
February 2011 by Louise Fernandes-Owen of Field Fisher Waterhouse LLP

The Regulations come into force on 6 April 2011 and unless the transitional provisions apply, retirements under the DRA procedure will no longer be valid from this date. In essence, the transitional provisions state that the current DRA procedure will continue to have effect in relation to a person if:

1. notification of retirement has been given in accordance with the Employment Equality (Age) Regulations before 6 April 2011; and

2. that person "will attain" the age of 65 (or the normal retirement age if higher) during the period that begins with 6 April 2011 and ends with 30 September 2011.

Unfortunately, the above second condition has already caused some confusion. The effect of this condition is that an employee who is 65 by 6 April 2011 would not appear to fall within the transitional provisions as, being 65 already, they will not "attain" that age between 6 April 2011 and 30 September 2011. If such an employee has already been given notification of retirement but is then dismissed on or after 6 April 2011, the employer may therefore be exposed to age discrimination and unfair dismissal claims (unless the employer can show that the retirement is objectively justified). We will report on any clarification of this issue in future articles.
February 2011 by Louise Fernandes-Owen of Field Fisher Waterhouse LLP