The Department for Work and Pensions (DWP) has published its response to its consultation on proposed exemptions to the age discrimination requirements to address certain issues on flexible retirement, which had been delayed pending judgment in the “Heyday” case (see our September 2009 update). The DWP has confirmed that no further exemptions (which it was hoped would have given employers certainty in providing non-discriminatory flexible retirement options) will be included in the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031).

The response document, “Flexible Retirement and Pension Provision: Government Response to the Consultation on Draft Regulations” states that the DWP decided to abandon the proposed exemptions following consultation responses which confirmed that:

  • many flexible retirement arrangements have already been set up within the current framework; and
  • several respondents to the consultation expressed doubts that the concept of flexible retirement was discriminatory at all.

The DWP is to consider producing further guidance but has made no firm commitment to do so. Any such guidance would need to take into account any changes enacted under the forthcoming Equality Bill.

View the consultation response.

Comment: it is disappointing that after two years it seems that nothing has been achieved in this area and it remains unclear. While the consultation did expose differing opinions on whether any action was actually necessary, trustees and employers will continue to attempt to address often difficult flexible retirement issues without falling foul of current legislation.