2 April 2012
The Court of Appeal has given its judgment in a case supporting the right of employees to be informed of their right to request not to be retired.
The case, Bailey v R&R Plant Hire (Peterborough) Limited, has been closely followed as it suggests the correct procedure to follow if companies wish to retire an employee when they reach the default retirement age.
Michael Bailey, represented by Leigh Day & Co, a 68 year old brought his case under the Employment Equality (Age) Regulations 2006 concerning the default retirement age, which was phased out from April 2011.
The company had employed Mr Bailey as a motor vehicle engineer since 1999. He reached the default retirement age of 65 in January 2009. The company told Mr Bailey that they intended to retire him when he reached 65 and also that he had a right to request to continue working beyond this date.
Mr Bailey responded that he wanted to continue working for the foreseeable future, regardless of age, and that his excellent service and commitment meant that the company should consider his request.
The company refused to employ Mr Bailey beyond his 65th birthday and dismissed him. Mr Bailey brought a claim for unfair dismissal and age discrimination.
The employment tribunal dismissed this claim in April 2010, saying that Mr Bailey’s request did not comply with the technical requirements of the Age regulations.
However, Mr Bailey appealed to the Employment Appeal Tribunal, and his appeal was successful. Today’s judgment in the Court of Appeal upholds this decision by the EAT that the company had not informed Mr Bailey properly of his right to request continuing work beyond 65, and that this made the dismissal unfair, regardless of whether Mr Bailey’s letter did or did not comply with the Age regulations.
Today’s decision means that an employer has to have alerted the employee that their request not to be retired had to follow the age regulations, that they must direct employees to the procedural requirements in the age regulations.
Michael Newman a lawyer in the employment law team at Leigh Day and Co said:
“Whilst a technical judgment, today's decision in the Court of Appeal has wide ranging consequences for those people whose cases are awaiting judgment based on the default retirement age, which was scrapped in 2011. These cases will now be heard in light of this decision.”
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