The Department for Business, Innovation and Skills has now issued a second version of the draft Employment Equality (Repeal of Retirement Age) Regulations 2011, which correct a drafting error contained in the original version (as highlighted by PwC in our update of 18 February 2011).

Under the latest draft, it has been clarified that employees may be lawfully retired where up to 12 months' notice of intended retirement date is issued by 5 April 2011 and where the employee has attained or will attain the age of 65 by 30 September 2011. In the original version, the effect of the regulations was to allow retirement under these transitional provisions only where the employee reached the age of 65 between 5 April and 30 September 2011, but not before.

This further set of draft regulations also contains express provisions relating to the employee's right to request working beyond the intended retirement date, previously absent from the original draft regulations. The new provisions stipulate that under the transitional provisions the last date for an employee to issue a request under the duty to consider procedure will be 4 January 2012. (This is reflective of the existing statutory timescales which provide that the employee's request should be raised not more than 6, but more than 3 months' before the intended retirement date).

It should also be borne in mind that where an extension of more than 6 months is agreed, under the existing regime, fresh notice of intended retirement would have to be issued for the subsequent retirement. But, as we know, no further notices can be issued beyond 5 April 2011, and so the effect of this is that in accordance with the transitional provisions an employer can only agree an extension of up to 6 months to retire someone under the current regime. An agreed extension beyond that could only lead to compulsory retirement under the new rules, i.e. where it can be objectively justified.

There is some divergence amongst commentators as to the precise dates when notices will take effect but applying particular case law which provides for notice to take effect on the day of the relevant subsequent month which corresponds with the day of the month on which it was given, the summary of key dates as it currently stands is as follows:

* 5 April 2011: last date for notice of intended retirement to be issued
* 5 April 2012: last date for notice of intended retirement to take effect; but subject to
* 4 January 2012: last date for employee to issue statutory request to work beyond intended retirement date; and where up to 6 month extension agreed
* 5 October 2012: last date for employee to be retired under existing regime; beyond which any compulsory retirement will have to be objectively justified.

The draft regulations and timescales as detailed above have been confirmed as applicable in GB. A specific announcement as to NI implementation dates is awaited.