The retirement exemption – in the shape of the default retirement age – has now been swept away, but still applies, subject to certain conditions, to retirements notified prior to 6 April 2011. To take advantage of the exemption the notice of retirement must have been given in accordance with schedule 6 to the Age Equality Regulations. That schedule states that the employer must supply a written notification of the intended retirement date and of the "employee's right to make a request" not to retire. The EAT has recently decided that there is more to this requirement than meets the eye: the employee must be told about the "conditions which are essential if a valid request is to be made".
If the EAT is right, as a minimum a valid notice must tell the employee that the request not to retire must be in writing, state that it is made under paragraph 5 schedule 6, and be served between three and six months before the intended date of retirement. It is fair to say that many employers will have not done this. Unless the decision is reversed on appeal, there may be some difficulty as a result. It is now probably too late to remedy any defects in the notices, but that is only a problem if those employees wishing to work beyond their retirement date do not get what they want.