On 1 March 2011, the Government published new draft Regulations relating to the abolition of the default retirement age (DRA). These Regulations correct the drafting mistakes which were in the previous draft, concerning the transitional provisions.

Transitional provisions – apply to retirements notified on or before 5 April 2011

The transitional arrangements apply to employees who are 65 on or before 30 September 2011. Such employees may be retired, provided that the statutory DRA procedures are followed correctly, where they have been given retirement notification:

  • already; or
  • by 5 April 2011.

Their retirement does not have to take effect by 30 September 2011. So, if an employee is given the maximum 12 months' notice of retirement on 5 April 2011, their last date for retirement will either be:

  • 4 April 2012; or
  • 5 October 2012, if the employer agrees to an employee's request for an extension of their retirement date for the maximum period of six months. The last day on which an employee can make such a request is 4 January 2012.

The key provisions – apply from 6 April 2011

The provisions in the draft Regulations relating to the abolition of the DRA remain unchanged. From 6 April 2011:

  • employees cannot be retired under the DRA, and the statutory DRA procedures will be abolished;
  • when recruiting, it will be unlawful for employers to refuse to employ a job applicant aged 64.5 and over on the grounds of their age, unless they can objectively justify this; and
  • employers can lawfully withdraw, or not offer, group risk insured benefits (e.g. income protection, life assurance, private medical cover, etc) when employees reach 65 or the state pensionable age.

Any retirements which are notified on or after 6 April 2011 will amount to unlawful age discrimination under the Equality Act 2010, unless the compulsory retirement age, to be known as the 'employer justified retirement age' (EJRA), can be objectively justified. Although we do not yet know how difficult it will be for employers to objectively justify an EJRA, the generally accepted position is that it will not be easy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.