As we all know the default retirement of age of 65 is due to be abolished with effect from 30 September 2011. There is to be a transitional period from 6 April to 30 September during which we expected that it would be possible to proceed with the retirement of anyone who would reach the age of 65 on or before 30 September 2011.
Draft transitional regulations became public this week and have got employment lawyers very excited. This is because the way they are drafted at present (and this may just be a mistake which will be corrected before they come into force) they allow employers to retire any person reaching the age of 65 during the transitional period but, crucially, not anyone who was already 65 when the transitional period started. This means that if an employee is already 65 or due to reach 65 before 6 April, even if the employer has already given the appropriate notice of retirement which is to take place during the transitional period, going ahead with that retirement will leave them exposed to claims for age discrimination and unfair dismissal.
This is purely down to the way the draft regulations have been drafted. It makes no sense for them to operate in this way protecting employees who reach 65 before 6 April but not those who do so between 6 April and 30 September. I hope this is simply a mistake which will be corrected before the regulations come into force. However, it is hardly inspiring that something in this form should have slipped out, particularly after the recent fiasco over section 147 of the Equality Act, the effect of which is, arguably (and you can find eminent QCs on both sides of this argument), that a compromise agreement is not effective to waive claims under the Equality Act which means there is now no simple way for employers to obtain protection from discrimination claims. Although I hope the transitional provisions will be corrected it is hardly reassuring that the current government position on section 147 of the Equality Act is to insist that there is no problem despite the efforts of the Employment Lawyers Association.
This sort of thing gives lawyers endless opportunity to argue (which we enjoy very much) but does nothing to help small business which, supposedly, the government wants to support.