In Bailey v R&R Plant Hire (Peterborough) Ltd UKEAT/0370/10, the employer company informed its employee, Mr Bailey, of its intention to retire him on his 65th birthday and of his right to request to work beyond that date. Mr Bailey requested to work beyond his retirement but did not cite paragraph 5(3) of Schedule 6 to the Employment Equality (Age) Regulations 2006 (Age Regulations), as required.

The EAT held that Mr Bailey's request to work beyond retirement was invalid as it did not cite paragraph 5(3) of Schedule 6 of the Age Regulations. However, importantly, it also held that an employee could not be considered informed of the right to request to work beyond retirement if they had not been told of the essential conditions by which that right must be exercised. The EAT held that this meant there was an implied duty on an employer to notify the employee that a request had to be in writing and had to cite paragraph 5(3) of Schedule 6 to the Age Regulations.

Practically speaking, the importance of this decision is limited in light of the repeal of the Age Regulations on 6 April 2011, but many employers may have issued employees with notices to retire under the Age Regulations only to find that those notices are invalid if they have not told the employees what they need to include in their request to work beyond retirement.