Stay another day
A recent judgment appears to have been an attempt by the EAT to head off claims for inadequate consideration of a request to stay on after the intended retirement. But, warns Adele Aspden, it is unlikely to work and employers should brace themselves for a rise in challenges of this type.
The Employment Appeal Tribunal (EAT) has ruled in Compass Group Plc v Ayodele, 14 July 2011, that an employer’s duty to ‘consider’ an employee’s request to stay on after their intended retirement date, under the retirement procedure set out in the 2006 Age Regulations, necessarily involves considering the request in good faith, in the sense that an employer must genuinely consider whether it should be accepted. A failure to do so will not itself mean the dismissal is discriminatory. It will, however, be automatically unfair.
Although the default retirement age has now been abolished, the case remains relevant to retirements set in train before 6 April this year.
Good faith
As for what constitutes considering a request in good faith, the EAT said it will not be enough for an employer "simply to sit through the meeting with a closed mind as the result of a pre-determination of the outcome".
In this case the employer’s own witness, who conducted the meeting to consider the request, gave evidence that "… as far as he was concerned the company’s policy had to be applied and there were no exceptions to this, and that the meeting was a formality and there was nothing that the claimant could either say or do to change the outcome which was pre-determined by the policy and by what he … had been told before and by HR, namely that the claimant would be retired when he reached the age of 65, no matter what."
The evidence of another of the employer’s witnesses, who conducted the appeal, was that "… he also had decided before his meeting with the claimant that the claimant’s request to be allowed to carry on working beyond his 65th birthday was to be refused. He agreed (in response to a question put by the Tribunal) that the matter was a “done deal”, that “the policy was the policy” and that he had already decided that the policy would apply rigidly before the appeal started. The appeal was a meaningless formality. There was nothing that the claimant could say or do at the appeal to overturn the decision which had been dictated by the policy that retirement took place at age 65."
Based on that evidence, it is unsurprising that the EAT upheld the original tribunal’s decision that the employer had not, in fact, ‘considered’ the claimant’s request to remain on after his proposed retirement date.
However, the EAT went on to suggest that in most cases it will be difficult for a case of bad faith to be established. The Appeal Tribunal said "no inference of bad faith can be drawn from the facts that a request … has been refused. Nor … do we think that any adverse inference can be drawn from the fact that an employer, like the Respondent in this case, has a policy of not agreeing to request for extensions: such a policy is in principle legitimate, provided that it is a policy rather than an inflexible rule and accordingly admits of the possibility of exceptions."
This appears to be an attempt by the EAT to head off at the pass other claims alleging inadequate consideration of requests to stay. It is unlikely to work, however, and employers can now expect to face an increase in challenges to retirement decisions. With that in mind, it is important, where meetings to consider requests have not yet been held, that managers understand that they need to enter into discussions with an open mind. It would also be sensible to inform the employee that this is the basis on which discussions are being held: this can be made clear in correspondence arranging the meeting, as well as at the outset of the meeting itself (which should be minuted).
Adele Aspden is a Professional Support Lawyer at Eversheds. She can be contacted on 0845 497 6153 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..
