This is important. Very important. If the case of Bailey v R&R Plant (Peterborough) Ltd is right, many businesses will come, what is commonly referred to as, a 'cropper'. The case suggests that if the employer has not told the employee to include the phrase "made pursuant to paragraph 5" of the Age Regulations 2006 (now repealed) in their request to work beyond the retirement date, then the employer's notice of retirement does not comply with the retirement regulations and cannot be remedied. This means that, at the moment, there is a whole swathe of employees out there working towards a potentially invalid retirement. Told you it was important!
The reluctant retiree in this case was Mr Bailey. In 2008, he was approaching his 65th birthday and R&R suggested that he may want to celebrate by retiring and issued a written notice to this effect. That notice also informed Bailey of his right to request to work beyond the retirement date. Bailey availed himself of this right but R&R refused.
This prompted Bailey to bring a claim for unfair dismissal and age discrimination. R&R defended the claims on the basis that Bailey's request to work beyond his retirement date was defective because it failed to refer to paragraph 5, schedule 6 of the Age Regulations. The way the Age Regulations were drafted meant that the employee's request must be made in writing and state that it is made pursuant to paragraph 5. Of course, in practice, employers did not tend to make an issue of any request which failed to comply with this requirement, few businesses (and possibly legal advisers!) being aware of its existence. Since Bailey's request did not contain this statement it was defective and the tribunal, albeit reluctantly, found that his claims failed.
However, on appeal, the EAT found that since R&R had not informed Bailey that he must explicitly refer to paragraph 5 in his request to continue his employment beyond his 65th birthday, then valid notice of retirement had not been given and 'retirement' could not be the reason for his dismissal. The EAT reached this conclusion despite the fact that, on a pure reading of the Age Regulations, there is no requirement for employers to alert employees to the procedural requirements of their requests.
This impacts the transitional provisions that apply following the scrapping of the retirement provisions on 6 April 2011 which allow certain retirements to take effect after that date, provided, notice was given before that date. For those provisions to apply the notification provisions under the Age Regulations must have been complied with. In other words, a valid notice must have been given before 6 April 2011. It is highly likely that a large number of businesses did not inform their employees that, if they wished to request that they work beyond their retirement date, they must state in their request that it is made pursuant to "paragraph 5 of schedule 6 of the Age Regulations". All is not lost however, as businesses can still argue that the dismissal was fair for some other substantial reason and that any award should be limited as dismissal would have taken effect had a fair process been followed. Nevertheless, given the potentially far-reaching consequences of the decision, it can only be hoped that it will be successfully appealed! In the meantime, you should check the documentation of any upcoming retirees ...