Bailey v R&R Plant (Peterborough) Ltd UKEAT/0370/10

This case concerns an employee’s statutory right to request not to retire.  That right has now been repealed under the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 which took effect on 6 April 2011.  Under the previous rules there was a short window of opportunity before 6 April 2011 for employers to serve notice in relevant circumstances on employees to retire when they reached 65.  Under that notice, employers were also required to invite the employees to make an application not to retire on the intended date of retirement.  In respect of that request, the Court held that it was insufficient for the employer R&R simply to require Mr Bailey to make the application in writing.  Schedule 6 of the Regulations stated that the request by the employee had to be made in writing and had to state that it was made under paragraph 5. 

The EAT held that there was an implied duty on R&R to inform Mr Bailey of the essential conditions for a valid request to be made.  He was not informed of the statutory procedural right merely by being told that he may make a request not to retire.  The letter informing him that he would be retired was therefore invalid as it did not refer to paragraph 5.   

The EAT held that Mr Bailey’s termination by reason of retirement amounted therefore to an unfair dismissal.  This is a surprising decision but the tribunal may have been influenced by the fact that Mr Bailey received no written notification of R&R’s decision contrary to Schedule 6 and he was eventually dismissed as previously notified on 20 January.  He was awarded a basic award only of £4,455 on the basis that his retirement would have taken place on the intended date in any event.   

Key point:  Employees may be able to exploit this technical breach but it is now too late for employees to issue a fresh notice.