R & R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410
Decision Number:
Published on: 05/04/2012
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Background
The EAT held in this case that the obligation on employers to notify employees of their right to request working beyond retirement was not complied with unless the employer notified the employee of the essential conditions for exercising the right. The invalidity of the employer‟s notice therefore made the employer‟s dismissal for retirement unfair. The Employment Equality (Age) Regulations 2006 were repealed on 6 April 2011 and employers that have issued invalid notices cannot now issue fresh notices to rectify the any errors. A “request” must be in writing and state that it is a request made pursuant to paragraph 5 of the above legislation. The claimant in this case received notice six months before his 65th birthday that it was the intention of the company to retire him at 65 and notified him that he had a right to request working beyond that date. This request was provided in writing to the respondent employer but the retirement went ahead on 20 January 2009. Unsuccessful claims were brought by the claimant for unfair dismissal, age discrimination and wrongful dismissal but the Employment Tribunal held that that his request was defective as it did not state that it was made pursuant to paragraph 5 of the legislation. The claimant appealed, stating that the respondent‟s letter did not comply with paragraph 2 (1) of Schedule 6 to the Age Regulations. The EAT agreed, allowing the appeal. Since the requirements of a valid notice of intended retirement date were not met, retirement could not automatically be deemed to be the reason for dismissal (in accordance with section 98ZD(2) of the ERA 1996). Counsel for the respondent argued that the EAT had added a gloss and that the regulations merely required the employer to tell the employee only that the employer intended to retire him on a particular date and that he was entitled to make a request not to retire on that date. The respondent appealed to the Court of Appeal. 69The Court of Appeal dismissed the appeal but did not agree with the reasoning of the EAT. Dame Janet Smith said that, although the EAT had gone too far by suggesting that the employee should also be told what the requirements will be if he makes a request, when read correctly together with the interpretations section paragraph 2(1) requires that "the employer to tell the employee that he has a right to make a request not to retire pursuant to paragraph 5 of schedule 6 of the Employment Equality (Age) Regulations 2006. Parliament had set up a statutory scheme which, if followed, had potential advantages to both employer and employee, over and above the consequences of the mere communication between the parties of a decision to retire the employee and the employee's request to stay on. It is important, in my view, that the employee should be told that the employer is invoking a statutory procedure and not merely writing to terminate the employment. The way in which Parliament has provided for that information to be imparted is by requiring the employer to tell the employee that he has a right to make a request not to be retired under paragraph 5 of the schedule."While it may have been "good practice" for the employer to go the extra distance and inform the employee of the technical requirements of making a request not to require, the court did not think that the legislation imposed this duty on the employer. The intention of Parliament was that, having been told they have a statutory right; it can properly be left to the employee to find out how to exercise this right.http://bit.ly/HZLIGD
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This article is correct at 05/04/2012
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