IMPORTANT EMPLOYMENT LAW UPDATE: BAILEY v R&R PLANT HIRE (UKEAT/0370/10/ZT)

Kim Hurley

Our firm has been inundated with calls following the handing down of judgement in Bailey v R&R Plant Hire Ltd by the Employment Appeal Tribunal (EAT) last week. We represented R&R Plant Hire in this matter and were present at the hearing of the appeal.

Important note for legal professionals and other interested persons
Our firm continue to be instructed by R&R Plant Hire and we have received instructions to appeal the EAT decision. The formal application to appeal has now been made.

For Employers

Employers who gave notice to an employee of intended retirement under the Default Retirement Age (DRA) provisions of the Employment Equality (Age) Regulations 2006 (“The Age Regulations”) should be aware that, as a result of this judgement, those notices may be ineffective.

The Employment Appeal Tribunal held that it is not enough for an employer to advise the employee who they intend to retire at the DRA of 65 that the employee has the right to request the decision to be reconsidered. According to the EAT, the employer is also required to inform the employee of the specific requirements as to how that request should be made as contained in the Age Regulations.

This decision may affect employers in 2 situations:

(1) Where an employer has given notice and the employee has since left its employ

In this scenario, if the employer’s notice was invalid because the employee was not told in writing specifically what he or she had to do to make a valid request not to retire, the employer may find itself subject to an unfair dismissal claim on the basis that it failed to follow the correct statutory procedure for compulsory retirement.

(2) Employers who have given notice of intent to retire but where the relevant employee has not yet left its employ

If an employer has given an employee notice of intended retirement but that employee is still serving out his or her notice period, the employer may find that, following this decision, the notice of intent to retire that was given to the employee is in fact ineffective.

In such a case, the employer will still have an opportunity to avoid a claim for unfair dismissal (there being no dismissal as yet). However, if the notice is invalid, the employee will no longer be able to lawfully retire the employee simply because he or she has reached what was the DRA of 65 years. Instead, the employer will need to consider whether there is some other “fair” reason for that employee to be dismissed.

For Employees

As a result of this decision, employees who have been compulsorily retired or who are serving out a period of notice before retiring, may find they now have, or may have if their employment terminates in the future, a claim against their former employer for unfair dismissal where no such claim would otherwise have succeeded.

Further Information
We advise those employers who have given notice of intention to retire under the DRA provisions to revisit those notices.

Employees may also wish to look again at their notices to see whether a claim may lie against their former employer.

Please note that R&R will be seeking to appeal this decision and as such the law remains in a state of flux. If leave to appeal is granted, it will be for the Court of Appeal to decide what the Age Regulations required employers and employees to do.

If you would like any further information or legal advice in relation to anything discussed in this article please contact Kim Hurley in our Civil Litigation department on (01945) 586612 or email kimhurley@fraserdawbarns.com