The Advocate General’s opinion means that the UK can set a mandatory retirement age. Following the decision, the High Court will now
decide whether 65 can be justified as a retirement age. This is likely
to happen early next year.
What does this mean for employers?
The outcome does not have any new implications for
employers. However, organisations are advised to continue to apply good practice
in relation to the Employment Equality (Age) Regulations.
The ageing population and changing demographics means that
the need to attract and retain skilled employees continues to be a key issue for
the NHS. By ensuring that procedures and processes are in place to enable
employees to request extending their employment beyond the default retirement
age, employers can help to retain a skilled workforce. See our age diversity
pages for more details.
The case, which was made by Age Concern’s membership arm
called Heyday, was referred to the European Court of Justice two years ago.
Heyday argued that Employment Equality (Age) Regulations discriminate against
What is the default retirement age?
The default retirement age was introduced as part of the
Employment Equality (Age) Regulations in October 2006 and should not be
confused with the Normal Pensionable Age, which is when employees can begin to
draw their pension via the NHS Pensions Scheme.
The default retirement age means that:
It is lawful for employers to terminate the employment of an
employee on the grounds of age when they reach the age of 65.
Employers are required to introduce a process that enables
employees who are approaching their sixty-fifth birthday to request that
employment is extended beyond the default retirement age.
Employers could incur costly penalties if this process is not
carried out properly and within prescribed timescales.
What are employers doing?
NHS Employers sought feedback from employers to find out how
they are responding to Employment Equality (Age) Regulations. The main findings
Many employers no longer specify a retirement age for staff. Some
trusts removed retirement age from their contracts at the time that age
legislation was introduced and now simply require employees to give three
Where the default retirement age has been used, it has been
applied uniformly to staff of all professional groups. Whilst the contractual
age is 65, differences in when people actually retire occur through individual
choice and the provisions of the pension scheme.
Some organisations are taking advantage of the legal provisions
to extend working lives and retaining skilled employees by introducing flexible
working for staff of all ages. Many employees opt to work part time hours
beyond age 65.
There is limited evidence of any impact on opening up
opportunities for training but some older employees are starting to consider
retraining (for example, in nursing). The legislation has had most impact on
external training providers who have had to demonstrate equal access regardless