Abolition of the default retirement age of 65
It is often said that farming is an aging profession, with the average age of farmers frequently quoted as being 58. I don’t know if there is a similar statistic for farm workers, but they don’t seem to be getting any younger! In fact, following the introduction of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011, they are probably getting older.
These regulations abolished the default retirement age of 65. Employees are now able to work until whatever age they want to, provided that they are fit and able. It is unlawful age discrimination to force an employee to retire unless this can be objectively justified.
Whilst this change may not be of great concern for those manning supermarket checkouts, it does raise serious issues for those employing farm workers, where the role may have physical demands as well as multiple health and safety concerns. Already this year, we have seen far too many serious farm accidents, some involving older people.
Employers can now only compulsorily retire employees if they can objectively justify the retirement. If an employer wishes to have a fixed retirement age, it must be able to show that it is intended to meet a legitimate aim, that having the chosen retirement age meets that aim and that it is proportionate to use that retirement age as a means of meeting that aim.
If an employer cannot objectively justify the decision to compulsorily retire the employee, or if they otherwise handle the process unfairly, they could be exposed to a claim for unfair dismissal or age discrimination. Tribunal awards for the latter are unlimited so it is best avoided!
Employers should ensure that they have updated their Health & Safety Policy and Staff Handbook to reflect the current law, including those linked to retirement age. All documents should be consistent on this issue.
If the employee wishes to retire, this process must be treated in a similar way to resignation or dismissal. The policy should specify what steps the employee needs to take when they wish to retire. This would usually include a requirement to notify the employer in writing and give the period of notice set out in their contract of employment.
If you decide to have a fixed retirement age, you should consider why a particular retirement age is appropriate and necessary for a particular role, rather than adopt a blanket approach. You also still need to be able to show that the retirement dismissal of each employee on reaching that age is fair for one of the five potentially fair statutory reasons, and that it has followed a fair procedure. In most cases, an employer will rely on "some other substantial reason" as the reason for retirement. If there is no fixed retirement age, it may come to a point where the employee’s abilities have declined to the point where the employer needs to take action on performance grounds.
The health, safety and welfare of the individual employee and of the whole workforce will be an overriding consideration in this process. It is therefore important to be able to demonstrate a connection between the Health and Safety Policy and the retirement policy. Recorded accidents, incidents and the concerns of other staff will also help to support a decision to compulsorily retire an employee.
This may seem like a complicated, legalistic approach to a “simple” retirement. But just remember that the objective is for the employee to have a long and happy retirement, to prevent accidents at work and to reduce your legal liability as an employer.
If you would like any further information or to discuss any rural related matter, please contact Tom Wills, head of the agriculture & estates department at Sintons.