Employers who gave notice to retire employees under the old statutory default retirement age regime in the months running up to 6 April may be in for a nasty surprise: their notices of intended retirement may have been invalid.

The EAT has ruled that, to be valid, a notice of intended retirement must clearly explain that an employee wishing to exercise the statutory right to request continued working must do so in writing and must expressly state that the request is made pursuant to paragraph 5 of the Employment Equality (Age) Regulations 2006. Subject to the decision being appealed, any employer notice which failed to refer expressly to paragraph 5 will be invalid.

This seems to mean that retirements using an invalid notice that took effect before 6 April 2011 will be automatically unfair but, assuming the tribunal finds the reason is still retirement, not unlawful age discrimination. Compensation may therefore be limited to the basic unfair dismissal award plus up to 8 weeks' pay for breach of the procedure.

Where invalid notices have been given before 6 April for retirement dates after 6 April, the transitional provisions for the statutory retirement regime will not apply. The dismissal will therefore be unfair and probably also unlawful discrimination, unless the employer can objectively justify it. Employers in this situation may wish to consider retracting the notice and any contractual notice. (Bailey v R & R Plant (Peterborough) Ltd, EAT)