Although the default retirement age of 65 was abolished on 6 April 2011, the previous regime continues to affect employers who had issued their employees with between six and twelve months notice of their intended retirement date. For these employers, the rules of the previous regime remain important including the duty to consider requests to work beyond retirement age.

In the recent case of Compass Group plc v Ayodele UKEAT/0484/10, the employer had in place a policy to never agree to employees working beyond the retirement age. When Mr Ayodele requested to continue working two years beyond his 65th birthday, the company held a meeting to discuss the request with him but ultimately refused the request on the basis of their policy. After being dismissed, Mr Ayodele raised a claim of unfair dismissal. At the Tribunal Hearing evidence was led which showed the meeting had been a formality and nothing could have made them agree to the request. The Employment Tribunal found the dismissal had been unfair and the Employment Appeal Tribunal upheld this decision.

The case is authority that the duty to consider is in fact a duty to consider in good faith any request to work beyond retirement.  Likewise, the EAT felt that employers should not have an inflexible policy forbidding any exceptions.

Employers who still have employees on notice of retirement must therefore be aware of this and “genuinely consider” any request to work on. A policy of not allowing employees to work on can be workable under this decision, as long as there is at least the possibility of exceptions to that policy.