The Employment Appeal Tribunal has upheld a tribunal ruling that requests to continue working past retirement age (under the now defunct default retirement age statutory procedure) must be considered genuinely and in good faith. Employers should ensure that a policy of refusing requests is not applied rigidly and that managers are open to the possibility of making an exception to it depending on the merits of the request.(1)

The ruling will be relevant to cases covered by the transitional provisions for the abolition of the default retirement age, under which there could be valid employee requests until January 4 2012. Tribunals may also impose a similar standard where an employer continues to use a contractual retirement age after September 2011 and an employee requests that it be disapplied in his or her case.

Contractual retirement ages will also need to be justified from October 2011. A recent judgment from the Court of Justice of the European Union (ECJ) continues its relatively relaxed attitude to member states' national law and public sector retirement rules, in contrast with the more stringent approach adopted by UK tribunals in relation to individual employers.(2) The ECJ confirmed that creating a balanced workforce, promoting the recruitment of younger workers and avoiding disputes over older workers' fitness to work can all be legitimate aims.

For individual employers, identifying a legitimate aim is the easy part; the difficulty comes in providing evidence to show that a specific retirement age is a proportionate means of achieving such an aim, where a more robust test is applied to private employers than member states.

For further information on this topic please contact Andrew Brown at Herbert Smith LLP by telephone (+44 20 7374 8000), fax (+44 20 7374 0888) or email ([email protected].


(1) Ayodele v Compass Group, EAT.

(2) Fuchs v Land Hessen, ECJ.