The Court of Appeal has upheld the Employment Appeal Tribunal's (EAT) controversial decision in R&R Plant (Peterborough) Ltd v Bailey
Under the Employment Equality (Age) Regulations 2006 (the Age Regulations), an employer could lawfully force its employees to retire if it followed the statutory retirement procedure correctly and such dismissal would be neither unfair nor age discriminatory.
The statutory retirement procedure required the employee to be given advance notice of their retirement date by the employer and to be given the opportunity to request not to retire.
The Age Regulations were repealed on 6 April 2011, but transitional arrangements mean that this decision may still be relevant for some employers. In addition, a number of tribunal cases have been stayed pending the outcome of this case.
The case concerned the technical requirements around an employee's right to request not to retire. In particular, the specific information which an employer had to include in its notification to an employee that it intended to retire about their right to make a request to carry on working.
The Court of Appeal agreed with the EAT that an employer had to actually tell the employee that they had a right not to retire "pursuant to paragraph 5 of Schedule 6 of the Age Regulations". As the employer in this case had failed to include those words in its letter to Mr Bailey, it had failed to properly comply with the statutory procedure and Mr Bailey's dismissal was therefore unfair.
However, in this case the EAT accepted that no compensation for unfair dismissal should be awarded as Mr Bailey would have been retired on the same date even if the notice was properly worded.
This decision is surprising given that the legislation does not state that the employer must use the exact words which the EAT and the Court of Appeal ruled must be included. In contrast the legislation does expressly state that an employee's request to carry on working must, "be in writing and state that it is made under this paragraph ."
The outcome seems particularly harsh as it has always been regarded as good HR practice to keep communications with employees as easy to understand as possible, it might legitimately have been thought that reference to statutory provisions were best kept out of letters to employees.
Few will disagree with Dame Janet Smith who expressed her satisfaction in her judgment that, ".this unnecessarily complex piece of legislation is no longer on the statute book".