The default retirement age was abolished on 5th October 2011. After that date it became illegal to retire employees at a fixed age (whether 65, or above or below 65).

So can an employee be legally retired? The short answer is ‘not easily’. Retirement was effectively a form of legal dismissal, although most of us would prefer not to think of it in those terms. To legally retire an employee at a standard age employers must be able to objectively justify a retirement age, which is a tricky thing to do as people age and react to changes in technology etc. in very different ways. It is difficult therefore to know where to draw the line? In truth it’s impossible to say.

In time case law may give us some guidelines. A recent example is that of a law firm held to have acted legally when retiring an equity partner at 65 in order to allow progression opportunities for other staff who, but for natural wastage, had no other route to achieve equity partner status. Developing a robust legal arguments to support an employer’s universal retirement age is difficult to justify however. A case by case approach would be better taken.

This does not mean however that people who have reached the ‘old’ standard retirement age can never be dismissed. As with any employee, if their performance is not up to scratch, they can be taken through a performance or capability process, which may result in their dismissal. Do not to attempt to use this process to remove an employee who you feel should retire, but whose performance is not in question.

Mismanagement of cases regarding retirement can result in claims of unfair dismissal and Age discrimination thus the required length of service would not apply.

Please contact us if you have any issues with which we can help.

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