Employment Equality (Repeal of Retirement Age Provisions) Regulations (NI) 2011
Removal of the Default Retirement Age
From 6 April 2011, the rules which enable employers to operate a default retirement age are changing and Regulations have been introduced which will remove the Default Retirement Age (DRA) of 65.
On 24 March 2011, OFMDFM made Regulations, the Employment Equality (Repeal of Retirement Age Provisions) Regulations (Northern Ireland) 2011 (S.R. No. 168). These Regulations revoke and amend provisions in the Employment Equality (Age) Regulations (Northern Ireland) 2006 (and amend certain provisions in the Employment Rights (Northern Ireland) Order 1996) which except certain dismissals from employment on the basis of retirement from constituting direct age discrimination and unfair dismissal. These amendments are intended to remove the Default Retirement Age (DRA) of 65. A new provision relating to insurance arranged by an employer for the employer’s employees and other persons in connection with that employment is also made. The key dates are:
- From 6 April 2011, employers will not be able to issue any notifications for compulsory retirement using the DRA procedure.
- Between 6 April and 1 October, only people who were notified before 6 April, and whose retirement date is before 1 October can be compulsorily retired using the DRA.
- After 1 October, employers will not be able to use the DRA to compulsorily retire employees.
Under the DRA employers must give a minimum of six months notice of retirement but no more than 12 months notice. Retirements notified on or before 5 April 2011 can continue through to completion provided that the following conditions are met:
- the DRA procedure, as set out in the previous Employment Equality (Age) Regulations 2006, is followed correctly (including the employee's right to request to stay on is given serious consideration by the employer)
- the person retiring hasreached 65 or the normal retirement age (if this is higher) before 1 October 2011. Therefore an employee must be 65 by the 30 September if they are to be retired using the DRA.
Employers will not be able to issue notifications of retirement using the DRA after 5 April 2011.
The provision allowing short (two weeks') notice of retirement, will also be repealed on 6 April 2011, and such short notice notifications will not be permitted on or after this date.
If an employee requests an extension of their period of notice of retirement an employer can agree this and still rely on the DRA provisions to enforce the retirement, providing that the extension is no more than 6 months and the employee retires on or before 5 October 2012. The employee's right to request to work beyond retirement ceases on 5 January 2012.
For employer-justified retirement ages, all notifications made prior to 6 April 2011 will continue to be valid, and there is no reason to curtail any notifications made under the former DRA arrangements prior to that date.
The Employment Equality (Age) Regulations (Northern Ireland) 2006, which came into operation on 1 October 2006, provided for a default retirement age of 65 that employers can rely on if they wish. The regulations make earlier retirement ages unlawful unless employers can objectively justify them. The regulations also introduced a statutory right for individuals to request postponement of retirement beyond the age of 65.
On 29 July 2010, the Coalition government published a consultation, "Phasing out the Default Retirement Age (DRA)" seeking views on its proposals to phase out the DRA, fulfilling a commitment in its Programme for Government and the Budget. The consultation proposed a six month transitional period ending with full abolition of the default retirement age in October 2011.
The Coalition Government response (PDF, 110 KB) to the consultation and the impact assessment (PDF, 441 KB), confirming that it would proceed with this plan for removing the DRA, were published on 13 January 2011.
The Executive here had little alternative other than to implement this policy following the government’s timescale given the link to Pensions and the need to maintain parity for organisations operating here that have headquarters in England, Scotland and Wales.
The Coalition Government made its Regulations on 1 March. OFMDFM on 24 March 2011 made similar Regulations, the Employment Equality (Repeal of Retirement Age Provisions) Regulations (Northern Ireland) 2011 (S.R. No. 168), which will be placed on the the legislation.gov.uk website at the following link:
There is information on the Government’s proposals on the Department for Business Innovation and Skills (BIS) website at the following link:
Further background information and research together with updated Department for Work and Pensions guidance for employers on workforce management without a fixed retirement age is available at: Business Link - Managing without a fixed retirement age.
Guidance produced by Acas can be found on the Acas website. Acas - Retirement Process and the removal of the Default Retirement Age and from their guidance booklet, “Working without the default retirement age" (PDF 343.62KB).
The Equality Commission for Northern Ireland will be including a brief update in their existing Age guidance publications to highlight the changes, and will also promote awareness of the changes as appropriate for example on their website and at seminars etc .
Age discrimination in employment
The Employment Framework Directive (2000/78/EC) requires all member states in the European Union to introduce legislation to prohibit direct and indirect discrimination at work on the grounds of age, sexual orientation, religion and belief and disability. The Directive required that legislation prohibiting age discrimination was brought into force on 1 October 2006.
For further information please go to the Employment Equality Regulations page