I am going through the retirement procedure with an employee and have followed the required steps. I understand that I am not required to give a reason for refusing a request to continue working, but feel it would be a good idea to have something prepared. I would like guidance on what we can say.
If reasons can be given for refusing a request, it is advisable to give those reasons – not least to avoid the possibility of an adverse inference being drawn in relation to any subsequent proceedings brought under the Age Discrimination Regulations.
It is good practice in employee relations to have some objective justification for the refusal. For many employers, the reason to reject a request to continue working beyond retirement age will be on the grounds of health, welfare or safety of the employee (following occupational health guidance) or long-term training requirements of the job.
It may help employers, when providing reasons, to bear in mind the type of reasons held to be appropriate for refusing a request for flexible working. Most will not be directly applicable, but they do provide some level of guidance. Significant additional costs or planned structural changes may be two examples. If reasons are given, they must not indicate discrimination on other prohibited grounds, such as sex, race or disability.
Most employers must consider workforce planning when employees reach retirement age. Organisations must be able to manage workplace succession by planning for retirement and replacing staff. This may be easier if a retirement age is set out in a collective agreement.
On 15 February, the European Court of Justice held (in a Spanish case: Palacios v Cortefiel Servicios SA) that a collective agreement specifying a particular retirement age did not break EU law when backed by national law. This may prove fatal to ongoing challenges to national retirement ages.
By Clare Norriss, solicitor, Magrath & Co
