The DRA was abolished with effect from 6 April 2011 subject to transitional provisions (see Transitional Proceedings below).
The effect of abolishing the DRA
- Any dismissals due to age which take place from 6 April 2011 will constitute direct age discrimination, unless covered by the transitional proceedings
- Retirement will no longer be a potentially fair reason for dismissal
- It will no longer be lawful for employers to refuse to employ individuals due to the individual being aged within 6 months of 65, or if higher, the normal retirement age.
Objective justification
Both direct and indirect age discrimination can be objectively justified if the treatment (or provision, criterion or practice) would be “a proportionate means of achieving a legitimate aim”. So provided that the employer can objectively justify the retirement of employees at a certain age it is still possible to dismiss employees on the grounds of their age.
Transitional Proceedings
A second set of Regulations which repeal the DRA have been enacted. The Employment Equality (Repeal of Retirement Age) Regulations 2011 (please find a link to these Regulations in the Resources section below) correct the drafting errors in the original Regulations but they go further than the original Regulations and are more complicated.
Briefly, the Regulations provide:
- employees can be lawfully retired provided (i) that notice of intention to retire was given by 5 April 2011, and (ii) that the employee has attained, or will attain the age of 65 by 1 October 2011
- there is a cut-off point of 4 January 2012 for an employee to exercise his or her right to request to work beyond retirement. This means that the employee who was given 12 months’ notice of an intention to retire on 5 April 2011 will be able to exercise his or her right to request to work beyond retirement on the last day available i.e. three months before the employer’s notice runs out
- if an employer agrees an extension of more than 6 months a fresh notice of intention to retire would have to have been issued before 5 April 2011. This means that the last possible date for retirement of an employee under pre-5 April law is 5 October 2012, i.e. 12 months’ notice to retire up to 5 April 2012, plus the maximum six month agreed extension which can be given without fresh notice to retire.
Commentary
As a dismissal on the grounds of age is now direct age discrimination, unless it falls within the transitional proceedings then either an employer must be able to objectively justify the age discrimination, or any dismissal will have to be on the basis of another potentially fair reason for dismissal such as ‘some other substantial reason’.
Resources
The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011
ACAS’ Guidance for employers – Working without the default retirement age
