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Default Retirement Age transition arrangements trouble lawyers

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Legal experts are questioning details of the Government’s plans for the abolition of the default retirement scheme, claiming they do not apply to workers aged over 65.

The draft regulations laid before Parliament to abolish the default retirement age (the exemption to age discrimination laws that permits employers to retire employees once they have reached the age of 65) contain transitional arrangements, which will apply to retirements that are already planned.

Only last month, the Government confirmed it would still be possible for such retirements to take effect up to 30 September 2011, provided the employer complies in full with the statutory retirement procedure in Schedule 6 of the Employment Equality (Age) Regulations 2011, including giving at least six months' notice of intention to retire by 30 March 2011.

But, according to analysts at international law firm Eversheds, it has become apparent this will only apply to employees who happen to turn 65 in the six months to 30 September - employees who are already 65 or older will not be included.

Audrey Williams, partner at law firm Eversheds, said: "Although the Government assured employers that the old rules would not simply be abolished in April but would be phased out over a six-month period, that is not how the new rules will operate. Employers were led to believe they could still retire employees during a six-month transition period between April and September, but it has transpired that this will only be allowed for employees who have not already reached the age of 65 - or the usual retirement age for the job if that's higher - by 5 April 2011.

"Employers will not be able to safely retire employees older than 65 unless retirement is capable of justification as a 'proportionate means of achieving a legitimate aim'.

"This seems to introduce unnecessary complications and it is hard to believe that it really represents the Government's intentions. Many employers will have already given retirement notices to employees to take effect on or after 6 April 2011 and may have to withdraw some notices of retirement, or risk their actions being retrospectively deemed unlawful," Williams said.