Age Discrimination - employees reaching age 65

Statutory Policy/Procedures - Age Discrimination in the Workplace

As you will be aware (ref MI Sheet 117/06) Age Discrimination legislation came into force on 1st October 2006. This legislation places certain requirements on schools, which we would like to remind you of.

Retirement

Although some staff can currently elect to retire at age 60 the Normal Retirement Age (NRA) for County Council employees is 65 for both teachers and support staff. Where the County Council/School is not the employer (e.g. foundation/VA), the situation is almost certainly the same because all school teachers have the provisions of the "Conditions of Service" for school teachers in England and Wales (Burgundy Book) incorporated in their contents of employment. The Burgundy Book allows for teachers to retire at the end of the term in which they attain the age 65.

In practice many teachers and support staff elect to retire at the age of 60 with the pension benefits they have accrued, without being affected by the Age Discrimination legislation.

The regulations introduce a new requirement on Schools to specifically notify Schools staff of their approaching contractual retirement date between 6 and 12 months in advance of their 65th birthday, and to offer employees the opportunity to request not to be retired. In effect the school, has a duty to consider such a request and follow a procedure called "the duty to consider". Schools may wish to know of retirements 12 months in advance in order to forward plan their staffing in the academic cycle. Schools may seek support from the Employee Service Centre who will be establishing information data to be used.

Requirements for Employees Retiring

The school should write to any member of staff (teaching and non-teaching) who will attain age 65 between 6 and 12 months before their 65th birthday. We would advise you to make this a termly exercise and write to any member of staff who will be 65 within the next 12 month period. This will ensure that contractual and statutory notice periods are adhered to. A model letter for this purpose is attached at Appendix A.

The intended date of retirement cannot be before the employees 65th birthday but nothing in this procedure precludes an employee from choosing to resign earlier.

Employee Rights

The employee is entitled to request not to be retired on or after the intended date of retirement. The employee must make such a request in writing no later than 3 months before their due retirement date as notified by the school.

Duty to Consider

Within a reasonable period of receiving such a request, the school must hold a meeting with the employee (and their representative if they so wish) to consider the request not to be retired. However, nothing prevents the school and the employee from agreeing to a later retirement date before this meeting. In this case no meeting needs to be held. In either case, the school must write to the employee with the decision and, where the decision is not to alter the retirement date, offering the right of appeal. A further letter must be sent following any appeal. It is recommended that the first meeting is conducted by the Headteacher and that any appeals are heard by the Governing Body Dismissal Committee usually a panel of 3 Governors chosen from the school personnel or staff committee; model letters are at Appendix B for these purposes.

Refusing a request not to retire

The School is not obliged to give reasons for refusing a request not to be retired, although in practice Schools may wish to offer an explanation. Schools should seek advice on this from their Human Resources Consultant or Human Resources Officer and it is important to ensure that the reason itself is not discriminatory.

Harassment/Victimisation due to age

It is unlawful to discriminate on the grounds of equal opportunities law including sex, race and disability. This discrimination is now extended to age. Stereotypical phrases such as "he/she is over the hill" or "younger employees are not as reliable" should not be used.

Dismissal on grounds of retirement

It is fair to dismiss staff for the reason of retirement but the dismissal may be unfair unless the "Duty to Consider" procedures have been properly followed. In addition legal advice warns against dismissing on grounds of retirement when in fact it is on the basis of performance or attendance. Equally, if the employee can show it was not a 'retirement' then it could be challenged on age discrimination i.e. a young worker would be dealt with under capability, with a clear action plan whereas the older worker may simply retired as an 'easy' option.

Action by Schools

• Obtain the age 65 retirement dates in the next 12 months and thereafter maintain a rolling list month by month. Schools should contact their Employee Support Officer in the Employee Service Centre if there are problems obtaining data using your normal means.



• Ensure internal school processes are amended accordingly to reflect the need to issue employees due to attain age 65 with a letter.



• Ensure any requests to work beyond age 65 are considered accordingly with the right to appeal against any refusal.



• Contact your Human Resources Consultant or Officer for further guidance and advice on this topic.