You can't. At least not after 1st October 2011, and even in this instance, you will need to have given the employee a notice for compulsory retirement before 6th April 2011. The keener 'Join In' readers amongst you may recognise that we've previously featured this dilemma in our Question of the Week slot, but the imminent phasing out of the Default Retirement Age (DRA) now means that the guidance has changed and employers will no longer be able to force staff to retire at 65.
From 1 October, compulsory retirement, regardless of age, will be unlawful age discrimination and potential unfair dismissal unless employers can justify their reasons as a proportionate means of achieving a legitimate aim. Therefore, unless an employee makes a decision to retire or resign, employers would only be able to fairly dismiss the employee on the grounds of conduct, capability, redundancy or 'another substantial' reason. The changes mean that:
The statutory retirement procedures will be removed including the 'right to request' working beyond retirement and the requirement for employers to give employees a minimum of six months notice of retirement. Even if an employee's original contract sets a retirement age of 60 or 65, the employer is unlikely to be able to force them to retire unless they have a very good justification for having a younger retirement age. Examples of professions who could adopt what is to be known as an 'Employer Justified Retirement Age' (EJRA) could include air traffic controllers and police officers. The new measures have been brought in to help tackle concerns relating to the ageing population and the shortfall in pension savings.
The Government had expressed the view that the DRA should not be used as an alternative to fair and consistent performance management. The changes will lead to a stronger emphasis on staff capabilities assessments, and could lead to an increase in age discrimination claims, so members need to be certain that they have effective performance management procedures in place for all employees.
It may also be beneficial to review your employment contracts and staffing policies. For further advice on this, and assistance on any other employment queries that you may have, ring the BWF helpline on 0844 209 2610.
Don't forget, Members' Day Workshop B 'Changing face of employer obligations' will focus on this issue in more details, along with a range of other changes that will affect employment law, and in turn, employers.