In our February briefing we reported that the draft regulations which were issued to repeal the default retirement age had an unforeseen sting in the tail; the regulations suggested that only employees who reached the age of 65 between 6 April and 30 September 2011 would be subject to the transitional provisions meaning that, from 6 April 2011 inclusive, employers would be unable to compulsorily retire employees who had already turned 65 prior to 6 April 2011 without the risk of a claim for age discrimination and/or unfair dismissal. As we reported at the time, this appeared to have been a drafting error by the government and we promised to keep you posted.

Since our February briefing, the government has published a revised draft set of regulations which corrects the problem. As now drafted, the transitional provisions will apply to any employees who attain the age of 65 (or any such normal retirement age where this is higher than 65) before 1 October 2011 providing the correct procedure detailed in previous briefings is followed. Accordingly, employees who have already reached age 65 prior to 6 April can be retired under the transitional provisions.

Furthermore, the previous suggestion that all retirements must take effect no later than 30 September has also been clarified. Employers must continue to provide employees with between 6 and 12 months notice and therefore an employee who receives 12 months’ notice of his retirement on or before 5 April 2011 can be lawfully compulsorily retired pursuant to the transitional provisions on or before 5 April 2012.

The amended draft regulations have not yet been published on the official BIS website but are expected to be made available shortly. We will provide a further update if any further changes come to light.