England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		24 July 2007

The Referring Court:

The High Court of Justice, Queen's Bench Division, Administrative Court.

The Parties:

a) Claimants: the Incorporated Trustees of the National Council on Aging ("Age Concern England")/ a charity which aims to promote the welfare of older people.

(b) Defendant: Secretary of State for Business, Enterprise and Regulatory Reform

The nature and history of the proceedings

1. The Defendant on 3 April 2006 made regulations in order to transpose into national law those parts of Council Directive of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (2000/78/EC) ("the Directive") that concern age discrimination.

2. The regulations are the Employment Equality (Age) Regulations 2006, SI 1031/2006 ("the Regulations").

3. By these proceedings for judicial review, the Claimants seek declarations that parts of Regulations 3, 30 and 7 of the Regulations are ultra vires the European Communities Act 1972 ("the 1972 Act"), in that they fail to give effect to the United Kingdom's Community obligations under the Directive. The Defendant contends that the Regulations properly implement the Directive, and are accordingly valid.

4. In summary, Regulation 3 defines the concepts of direct and indirect age discrimination for the purposes of national law; Regulation 30 excludes from the scope of the Regulations dismissals of employees on grounds of retirement at age 65 or above which are taken in accordance with certain procedural requirements; and the challenged parts of Regulation 7 make certain provision consequential on Regulation 30.

5. On 6 December 2006, the Administrative Court (Mr Justice Davis) granted the Claimants permission to apply for judicial review, and decided to refer to the European Court of Justice for a preliminary ruling pursuant to Article 234 of the EC Treaty questions concerning the interpretation of the Directive, on the ground that the interpretation sought is necessary in order to enable the Court to give judgment.

6. Each of the parties has submitted to the national court extensive evidence relating to the question whether the relevant provisions of national law are objectively justified. That issue has not yet been determined by the national court.

   Relevant rules of national law

   1. Pre-transposition rules

7. Prior to 1 October 2006, when the Regulations came into force, there were no general legislative provisions within the United Kingdom which prevented discrimination on grounds of age in relation to employment and occupation. Employers in the United Kingdom were able lawfully to retire employees who had reached the employer's normal retiring age, or, in the absence of such a normal retiring age, the age of 65.

8. However by section 109 of the Employment Rights Act 1996 ("the 1996 Act"), the right not to be unfairly dismissed did not apply to employees dismissed at the employer's normal retiring age (whatever that age might be), or, in default of such a normal retiring age, at age 65, and by section 156 of the 1996 Act, the right to a redundancy payment did not apply to redundancies occurring at the employer's normal retiring age (if below 65) or at age 65, if there was no such normal retiring age, or the normal retiring age was over 65.

9. These provisions of the 1996 Act have been repealed at the same time as, and in consequence of the steps taken by the United Kingdom to transpose the Directive into domestic law as set out below.

   2. Power to transpose requirements of Community law

10. By section 2(2) of the 1972 Act, any designated Minister may by regulations make provision for the purpose of implementing any Community obligation of the United Kingdom.

11. The Regulations were made by the Defendant pursuant to section 2(2) of the 1972 Act in order to implement the United Kingdom's obligations concerning age discrimination arising under the Directive. Separate regulations have been made to implement Community obligations concerning discrimination on grounds of sexual orientation, religion or belief and disability, also arising under the Directive.

    3. The relevant provisions of the Regulations

12. Regulation 3 defines age discrimination in national law, by providing that:

    3.—(1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if—

    (a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but—

    (i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and (ii) which puts B at that disadvantage, and A cannot show the treatment or as the case may be provision criterion or practice to be a proportionate means of achieving a legitimate aim

13. Parts 2 and 3 of the Regulations define the circumstances in which discrimination is unlawful.

14. However Regulation 30 provides:

    (1) This regulation applies in relation to an employee within the meaning of section 230(1) of the 1996 Act, a person in Crown employment, a relevant member of the House of Commons staff, and a relevant member of the House of Lords staff.

    (2) Nothing in Parts 2 or 3 shall render unlawful the dismissal of a person to whom this regulation applies at or over the age of 65 where the reason for the dismissal is retirement.

    (3) For the purposes of this regulation, whether or not the reason for a dismissal is retirement shall be determined in accordance with sections 98ZA to 982F ^[1] of the 1996 Act.

15. An "employee" is defined at section 230 of the 1996 Act as meaning an individual who has entered into or works under a contract of employment, meaning a contract of service or apprenticeship.

16. The effect of Regulation 30 is that an employee at or over the age of 65 is not entitled under national law to claim that his or her dismissal was an act of unlawful age discrimination where "the reason for the dismissal is retirement".

17. Whether or not 'the reason for a dismissal is retirement' depends on the application of the criteria in Schedule 8 to the Regulations (which replaces section 109 of the 1996 Act). These criteria vary according to whether the employee is 65 or over, whether the employer has a normal retirement age, and whether the employer has followed the procedure in Schedule 6 to the Regulations.

18. The relevant provisions of Schedules 6 and 8 are set out in the Appendix hereto.

19. In summary, by Schedule 6 to the Regulations, an employer who intends to claim that "the reason for the dismissal is retirement" in order to rely on Regulation 30 must give the employee between six months' and one year's notice of the intended date of dismissal and the employee's right to make a request not to be dismissed for retirement. The employee then has a right formally to request not to be dismissed for retirement, which must be considered by the employer in accordance with procedures laid down in Schedule 6.

20. However an employer is not obliged to grant such a request, nor is any specific mechanism laid down in the Regulations or elsewhere for a judicial review of the compatibility of the employer's decision with the principle of equal treatment set out in the Directive.

21. Regulation 7(4) supplements Regulation 30 by permitting employers to discriminate against people at or over age 65 on grounds of age in relation to recruitment where Regulation 30 could apply to the person if they were recruited. Regulation 7 provides so far as is material:

    (1) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to discriminate against a person— (a) in the arrangements he makes for the purpose of determining to whom he should offer employment;

    (b) ...

    (c) by refusing to offer, or deliberately not offering, him employment.

    (4) Subject to paragraph (5), paragraph (l)(a) and (c) does not apply in relation to a person—

    (a) whose age is greater than the employer's normal retirement age or, if the employer does not have a normal retirement age, the age of 65; or

    (b) who would, within a period of six months from the date of his application to the employer, reach the employer's normal retirement age or, if the employer does not have a normal retirement age, the age of 65

    (5) Paragraph (4) only applies to a person to whom, if he was recruited by the employer, regulation 30 (exception for retirement) could apply.

    (8) In paragraph (4) "normal retirement age" is an age of 65 or more which meets the requirements of section 98ZH of the 1996 Act.^[2]

    Provisions of the Directive

22. Recital 14 to the preamble of the Directive provides that

    "The Directive shall be without prejudice to national provisions laying down retirement ages."

23. Article 3 of the Directive, headed "Scope", provides, as far as is material:

    "1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and privates sectors, including public bodies, in relation to:

    ...

    (c) employment and working conditions, including dismissals and pay;"

24. Direct and indirect discrimination are defined at Article 2(2) of the Directive, which provides as follows, as far as is material:

    "(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1 [which include age];"

    (b) indirect discrimination shall be taken to occur where an, apparently neutral provision, criterion or practice would put persons having a particular ... age ... at a particular disadvantage compared with other persons unless:

    (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary ..."

25. However, as regards age discrimination, Article 6 of the Directive provides, as far as is material:

    "Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

    Such differences of treatment may include, among others:

    (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

    (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

    (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement."

    Summary of the contentions of the parties

    1. National retirement ages and the scope of the Directive

26. The Claimants contend

    (i) Save only where Recital 14 applies, Article 3 requires Member States to transpose the Directive so as to protect against discrimination on grounds of age in relation to all circumstances in which the employment relationship is terminated by dismissal by the employer, and

    (ii) Recital 14 permits Member States to transpose the Directive in such a way as to leave in place national provisions which had already laid down retirement ages prior to the making of the Directive, and

    (iii) The United Kingdom did not have such a national

    provision laying down a retirement age prior to the making of the Directive, and

    (iv) In any event Regulations 30 and 7(4) and (5) and the provisions of Schedules 8 and 6 to the Regulations are not national provisions which laid down retirement ages.

27. The Defendant contends that by reason of Recital 14, the scope of the Directive does not extend to national rules setting retirement ages, whether adopted before or after the date of the Directive, that the exclusion by Regulations 30 and 7(4) and (5) from the scope of claims for unlawful discrimination of the dismissal of employees at or over the age of 65 where "the reason for dismissal is retirement" constitutes "national provisions laying down retirement ages" and accordingly the Regulations raises no issue of compatibility with the Directive. The Defendant also contends that the provision of the 1996 Act relating to unfair dismissal summarised at paragraphs 7 and 8 above constituted national provisions laying down retirement ages.

    2. The definition of direct age discrimination: justification defence

28. The Claimants contend that Article 6(1) of the Directive does not permit Member States to introduce a general defence of justification for direct age discrimination, as provided for by Regulation 3 of the Regulations. They contend that Article 6(1) of the Directive should be interpreted as permitting Member States only to make specific provisions, as typified by Articles 6(l)(a) - (c), listing those acts of less favourable treatment on grounds of age which may be justified by the discriminator if they are proportionate to the achievement of a legitimate aim.

29. The Defendant contends that, on its proper interpretation, the Directive does not require Member States to specify any list of differences of treatment which may not constitute direct age discrimination if they are objectively justified, but that Article 6 permits Member States to implement the Directive by providing in general terms that less favourable treatment on grounds of age does not constitute discrimination if the discriminator proves that the treatment is a proportionate means of achieving a legitimate aim.

    3. The test for the justification of direct and indirect discrimination

30. The Claimants contend that the test for the objective justification of direct age discrimination at Article 6 of the Directive is materially different from the test for the objective justification of indirect discrimination under Article 2(2)(b) of the Directive, in that according to the text of the Directive, differences of treatment must be not only objectively but also "reasonably" justified by a legitimate aim. The Claimants contend that the test at Article 6 sets a higher standard for justification than that under Article 2(2)(b), and that only exceptionally is direct discrimination justifiable.

31. The Defendant contends that there is no material difference between the test for objective justification set out at Article 6 and that set out at Article 2(2)(b) of the Directive.

    4. Justification of Regulations 30 and 7(4) and (5)

32. If the prohibition on unjustified discrimination contained in the Directive applies to Regulations 30 and 7(4) and (5), the question whether those provisions are in fact objectively justified is a matter for the national court to determine.

33. The Defendant contends in the national proceedings that, if the Directive does apply to the making of Regulation 30 and 7(4) and (5), then those Regulations are objectively justified as a proportionate means of meeting legitimate aims, principally workforce planning, and avoiding an adverse impact on the provision of occupational pensions and other work-related benefits.

34. By contrast the Claimant contends in the national proceedings that

    a) it cannot be proportionate to exclude all dismissals "where the dismissal is by reason of retirement" within the meaning ascribed to that phrase in the Regulations from judicial review as to compliance with the principle of equal treatment set out in the Directive;

    b) the Defendant has only advanced generalisations as justification for these Regulations and that they do not meet the exceptional standard set by Article 6.

35. The Defendant does not accept in the national proceedings that its justification is based on impermissible generalisations.

    Questions referred

36. In these circumstances, the Administrative Court refers the following questions to the European Court of Justice pursuant to Article 234 of the EC Treaty.

    "In relation to Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation ("the Directive"):

    1. National retirement ages and the scope of the Directive

    i) Does the scope of the Directive extend to national rules which permit employers to dismiss employees aged 65 or over by reason of retirement?

    ii) Does the scope of the Directive extend to national rules which permit employers to dismiss employees aged 65 or over by reason of retirement where they were introduced after the Directive was made?

    iii) In the light of the answers to (i) and (ii) above

    (1) were section 109 and/or 156 of the 1996 Act, and/or

    (2) are Regulations 30 and 7, when read with Schedules 8 and 6 to the Regulations, national provisions laying down retirement ages within the meaning of Recital 14?

    2. The definition of direct age discrimination: justification defence

    iv) Does Article 6(1) of the Directive permit Member States to introduce legislation providing that a difference of treatment on grounds of age does not constitute discrimination if it is determined to be a proportionate means of achieving a legitimate aim, or does Article 6(1) require Member States to define the kinds of differences of treatment which may be so justified, by a list or other measure which is similar in form and content to Article 6(1)?

    3. The test for the justification of direct and indirect discrimination

    v) Is there any, and if so what, significant practical difference between the test for justification set out in Article 2(2) of the Directive in relation to indirect discrimination, and the test for justification set out in relation to direct age discrimination at Article 6(1) of the Directive?

    Appendix

    Note 1    Sections 98ZA to 98ZH of the 1996 Act is inserted by Schedule 8 to the Regulations and may be found below.    [Back]

    Schedule 8 to the Regulations

    The conditions relating to age and dismissal are set out in sections 98ZA to 98ZF of the Employment Rights Act 1996 which were introduced into the Employment Rights Act 1996 by paragraph 23 of Schedule 8 to the Regulations (from 1 October 2006) and are as follows:

    Retirement
    No normal retirement age: dismissal before 65
         98ZA. —(1) This section applies to the dismissal of an employee if—
    
    

    (a) the employee has no normal retirement age, and
    
    (b) the operative date of termination falls before the date when the employee reaches the age of 65.
    
    

        (2) Retirement of the employee shall not be taken to be the reason (or a reason) for the dismissal.
    
    No normal retirement age: dismissal at or after 65
         98ZB. —(1) This section applies to the dismissal of an employee if—
    
    

    (a) the employee has no normal retirement age, and
    
    (b) the operative date of termination falls on or after the date when the employee reaches the age of 65.
    
    

        (2) In a case where—
    
    

    (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and
    
    (b) the contract of employment terminates on the intended date of retirement,
    
    

    retirement of the employee shall be taken to be the only reason for the dismissal by the employer and any other reason shall be disregarded.
    
        (3) In a case where—
    
    

    (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, but
    
    (b) the contract of employment terminates before the intended date of retirement,
    
    

    retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.
    
        (4) In a case where—
    
    

    (a) the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and
    
    (b) there is an intended date of retirement in relation to the dismissal, but
    
    (c) the contract of employment terminates before the intended date of retirement,
    
    

    retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.
    
        (5) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, particular regard shall be had to the matters in section 98ZF when determining the reason (or principal reason) for dismissal.
    
    Normal retirement age: dismissal before retirement age
         98ZC. —(1) This section applies to the dismissal of an employee if—
    
    

    (a) the employee has a normal retirement age, and
    
    (b) the operative date of termination falls before the date when the employee reaches the normal retirement age.
    
    

        (2) Retirement of the employee shall not be taken to be the reason (or a reason) for the dismissal.
    
    Normal retirement age 65 or higher: dismissal at or after retirement age
         98ZD. —(1) This section applies to the dismissal of an employee if—
    
    

    (a) the employee has a normal retirement age,
    
    (b) the normal retirement age is 65 or higher, and
    
    (c) the operative date of termination falls on or after the date when the employee reaches the normal retirement age.
    
    

        (2) In a case where—
    
    

    (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and
    
    (b) the contract of employment terminates on the intended date of retirement,
    
    

    retirement of the employee shall be taken to be the only reason for the dismissal by the employer and any other reason shall be disregarded.
    
        (3) In a case where—
    
    

    (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, but
    
    (b) the contract of employment terminates before the intended date of retirement,
    
    

    retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.
    
        (4) In a case where—
    
    

    (a) the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and
    
    (b) there is an intended date of retirement in relation to the dismissal, but
    
    (c) the contract of employment terminates before the intended date of retirement,
    
    

    retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.
    
        (5) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, particular regard shall be had to the matters in section 98ZF when determining the reason (or principal reason) for dismissal.
    
    Normal retirement age below 65: dismissal at or after retirement age
         98ZE. —(1) This section applies to the dismissal of an employee if—
    
    

    (a) the employee has a normal retirement age,
    
    (b) the normal retirement age is below 65, and
    
    (c) the operative date of termination falls on or after the date when the employee reaches the normal retirement age.
    
    

        (2) If it is unlawful discrimination under the 2006 Regulations for the employee to have that normal retirement age, retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.
    
        (3) Subsections (4) to (7) apply if it is not unlawful discrimination under the 2006 Regulations for the employee to have that normal retirement age.
    
        (4) In a case where—
    
    

    (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and
    
    (b) the contract of employment terminates on the intended date of retirement,
    
    

    retirement of the employee shall be taken to be the only reason for dismissal by the employer and any other reason shall be disregarded.
    
        (5) In a case where—
    
    

    (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, but
    
    (b) the contract of employment terminates before the intended date of retirement,
    
    

    retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.
    
        (6) In a case where—
    
    

    (a) the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and
    
    (b) there is an intended date of retirement in relation to the dismissal, but
    
    (c) the contract of employment terminates before the intended date of retirement,
    
    

    retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.
    
        (7) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, particular regard shall be had to the matters in section 98ZF when determining the reason (or principal reason) for dismissal
    
    Reason for dismissal: particular matters
         98ZF. —(1) These are the matters to which particular regard is to be had in accordance with section 98ZB(5), 98ZD(5) or 98ZE(7)—
    
    

    (a) whether or not the employer has notified the employee in accordance with paragraph 4 of Schedule 6 to the 2006 Regulations;
    
    (b) if the employer has notified the employee in accordance with that paragraph, how long before the notified retirement date the notification was given;
    
    (c) whether or not the employer has followed, or sought to follow, the procedures in paragraph 7 of Schedule 6 to the 2006 Regulations.
    
    

        (2) In subsection (1)(b) "notified retirement date" means the date notified to the employee in accordance with paragraph 4 of Schedule 6 to the 2006 Regulations as the date on which the employer intends to retire the employee.
    
    Retirement dismissals: fairness
         98ZG. —(1) This section applies if the reason (or principal reason) for a dismissal is retirement of the employee.
    
        (2) The employee shall be regarded as unfairly dismissed if, and only if, there has been a failure on the part of the employer to comply with an obligation imposed on him by any of the following provisions of Schedule 6 to the 2006 Regulations—
    
    

    (a) paragraph 4 (notification of retirement, if not already given under paragraph 2),
    
    (b) paragraphs 6 and 7 (duty to consider employee's request not to be retired),
    
    (c) paragraph 8 (duty to consider appeal against decision to refuse request not to be retired).
    
    

    Interpretation
        

    Note 2    Section 98ZH of the 1996 Act is inserted by Schedule 8 to the Regulations and may be found below.    [Back]

    98ZH. In sections 98ZA to 98ZG—
    
    

    "2006 Regulations" means the Employment Equality (Age) Regulations 2006;

    "intended date of retirement" means the date which, by virtue of paragraph 1(2) of Schedule 6 to the 2006 Regulations, is the intended date of retirement in relation to a particular dismissal;

    "normal retirement age", in relation to an employee, means the age at which employees in the employer's undertaking who hold, or have held, the same kind of position as the employee are normally required to retire;

    "operative date of termination" means—

    (a) where the employer terminates the employee's contract of employment by notice, the date on which the notice expires, or
    
    (b) where the employer terminates the contract of employment without notice, the date on which the termination takes effect.
    
    Other dismissals".
    

    
    

    Schedule 6

    The provisions set out in schedule 8 refer to a procedure which is set out in Schedule 6 to the Regulations. That procedure is now set out Duty to consider working beyond retirement Interpretation:
    SCHEDULE 6 Regulation 47
    
    
    Duty to consider working beyond retirement
    
    Interpretation
         1. —(1) In this Schedule—
    
    
    "dismissal" means a dismissal within the meaning of section 95 of the 1996 Act[63];
    "employee" means a person to whom regulation 30 (exception for retirement) applies and references to "employer" shall be construed accordingly;
    "intended date of retirement" has the meaning given by sub-paragraph (2);
    "operative date of termination" means (subject to paragraph 10(3))—
    (a) where the employer terminates the employee's contract of employment by notice, the date on which the notice expires, or
    
    (b) where the employer terminates the contract of employment without notice, the date on which the termination takes effect;
    
    
    "request" means a request made under paragraph 5; and
    "worker" has the same meaning as in section 230(3) of the 1996 Act.

        (2) In this Schedule "intended date of retirement" means—
    
    

    (a) where the employer notifies a date in accordance with paragraph 2, that date;
    
    (b) where the employer notifies a date in accordance with paragraph 4 and either no request is made or a request is made after the notification, that date;
    
    (c) where,
    
    
    (i) the employer has not notified a date in accordance with paragraph 2,
    
    (ii) a request is made before the employer has notified a date in accordance with paragraph 4 (including where no notification in accordance with that paragraph is given),
    
    (iii) the request is made by an employee who has reasonable grounds for believing that the employer intends to retire him on a certain date, and,
    
    (iv) the request identifies that date,
    
    

    the date so identified;
    
    (d) in a case to which paragraph 3 has applied, any earlier or later date that has superseded the date mentioned in paragraph (a), (b) or (c) as the intended date of retirement by virtue of paragraph 3(3);
    
    (e) in a case to which paragraph 10 has applied, the later date that has superseded the date mentioned in paragraph (a), (b) or (c) as the intended date of retirement by virtue of paragraph 10(3)(b).
    
    

    Duty of employer to inform employee
         2. —(1) An employer who intends to retire an employee has a duty to notify the employee in writing of—
    
    

    (a) the employee's right to make a request; and
    
    (b) the date on which he intends the employee to retire,
    
    

    not more than one year and not less than six months before that date.
    
        (2) The duty to notify applies regardless of—
    
    

    (a) whether there is any term in the employee's contract of employment indicating when his retirement is expected to take place,
    
    (b) any other notification of, or information about, the employee's date of retirement given to him by the employer at any time, and
    
    (c) any other information about the employee's right to make a request given to him by the employer at any time.
    
    

         3. —(1) This paragraph applies if the employer has notified the employee in accordance with paragraph 2 or 4 or the employee has made a request before being notified in accordance with paragraph 4 (including where no notification in accordance with that paragraph is given), and—
    
    

    (a) the employer and employee agree, in accordance with paragraph 7(3)(b) or 8(5)(b), that the dismissal is to take effect on a date later than the relevant date;
    
    (b) the employer gives notice to the employee, in accordance with paragraph 7(7)(a)(ii) or, where the employee appeals, paragraph 8(9)(a)(ii), that the dismissal is to take effect on a date later than the relevant date; or
    
    (c) the employer and employee agree that the dismissal is to take effect on a date earlier than the relevant date.
    
    

        (2) This Schedule does not require the employer to give the employee a further notification in respect of dismissal taking effect on a date—
    
    

    (a) agreed as mentioned in sub-paragraph (1)(a) or notified as mentioned in sub-paragraph (1)(b) that is later than the relevant date and falls six months or less after the relevant date; or
    
    (b) agreed as mentioned in sub-paragraph (1)(c) that is earlier than the relevant date.
    
    

        (3) If—
    
    

    (a) a date later than the relevant date is agreed as mentioned in sub-paragraph (1)(a) or notified as mentioned in sub-paragraph (1)(b) and falls six months or less after the relevant date, or
    
    (b) a date earlier than the relevant date is agreed as mentioned in sub-paragraph (1)(c),
    
    

    the earlier or later date shall supersede the relevant date as the intended date of retirement.
    
        (4) In this paragraph, "the relevant date" means the date that is defined as the intended date of retirement in paragraph (a), (b) or (c) of paragraph 1(2).
    
    Continuing duty to inform employee
         4. Where the employer has failed to comply with paragraph 2, he has a continuing duty to notify the employee in writing as described in paragraph 2(1) until the fourteenth day before the operative date of termination.
    
    Statutory right to request not to retire
         5. —(1) An employee may make a request to his employer not to retire on the intended date of retirement.
    
        (2) In his request the employee must propose that his employment should continue, following the intended date of retirement—
    
    

    (a) indefinitely,
    
    (b) for a stated period, or
    
    (c) until a stated date;
    
    

    and, if the request is made at a time when it is no longer possible for the employer to notify in accordance with paragraph 2 and the employer has not yet notified in accordance with paragraph 4, must identify the date on which he believes that the employer intends to retire him.
    
        (3) A request must be in writing and state that it is made under this paragraph.
    
        (4) An employee may only make one request under this paragraph in relation to any one intended date of retirement and may not make a request in relation to a date that supersedes a different date as the intended date of retirement by virtue of paragraph 3(3) or 10(3)(b).
    
        (5) A request is only a request made under this paragraph if it is made—
    
    

    (a) in a case where the employer has complied with paragraph 2, more than three months but not more than six months before the intended date of retirement, or
    
    (b) in a case where the employer has not complied with paragraph 2, before, but not more than six months before, the intended date of retirement.
    
    

    An employer's duty to consider a request
         6. An employer to whom a request is made is under a duty to consider the request in accordance with paragraphs 7 to 9.
    
    Meeting to consider request
         7. —(1) An employer having a duty under paragraph 6 to consider a request shall hold a meeting to discuss the request with the employee within a reasonable period after receiving it.
    
        (2) The employer and employee must take all reasonable steps to attend the meeting.
    
        (3) The duty to hold a meeting does not apply if, before the end of the period that is reasonable—
    
    

    (a) the employer and employee agree that the employee's employment will continue indefinitely and the employer gives notice to the employee to that effect; or
    
    (b) the employer and employee agree that the employee's employment will continue for an agreed period and the employer gives notice to the employee of the length of that period or of the date on which it will end.
    
    

        (4) The duty to hold a meeting does not apply if—
    
    

    (a) it is not practicable to hold a meeting within the period that is reasonable, and
    
    (b) the employer complies with sub-paragraph (5).
    
    

        (5) Where sub-paragraph (4)(a) applies, the employer may consider the request without holding a meeting provided he considers any representations made by the employee.
    
        (6) The employer shall give the employee notice of his decision on the request as soon as is reasonably practicable after the date of the meeting or, if sub-paragraphs (4) and (5) apply, his consideration of the request.
    
        (7) A notice given under sub-paragraph (6) shall—
    
    

    (a) where the decision is to accept the request, state that it is accepted and—
    
    
    (i) where the decision is that the employee's employment will continue indefinitely, state that fact, or
    
    (ii) where the decision is that the employee's employment will continue for a further period, state that fact and specify the length of the period or the date on which it will end,
    
    

    (b) where the decision is to refuse the request, confirm that the employer wishes to retire the employee and the date on which the dismissal is to take effect,
    
    

    and, in the case of a notice falling within paragraph (b), and of a notice referred to in paragraph (a) that specifies a period shorter than the period proposed by the employee in the request, shall inform the employee of his right to appeal.
    
        (8) All notices given under this paragraph shall be in writing and be dated.
    
    Appeals
         8. —(1) An employee is entitled to appeal against—
    
    

    (a) a decision of his employer to refuse the request, or
    
    (b) a decision of his employer to accept the request where the notice given under paragraph 7(6) states as mentioned in paragraph 7(7)(a)(ii) and specifies a period shorter than the period proposed by the employee in the request,
    
    

    by giving notice in accordance with sub-paragraph (2) as soon as is reasonably practicable after the date of the notice given under paragraph 7(6).
    
        (2) A notice of appeal under sub-paragraph (1) shall set out the grounds of appeal.
    
        (3) The employer shall hold a meeting with the employee to discuss an appeal within a reasonable period after the date of the notice of appeal.
    
        (4) The employer and employee must take all reasonable steps to attend the meeting.
    
        (5) The duty to hold a meeting does not apply if, before the end of the period that is reasonable—
    
    

    (a) the employer and employee agree that the employee's employment will continue indefinitely and the employer gives notice to the employee to that effect; or
    
    (b) the employer and employee agree that the employee's employment will continue for an agreed period and the employer gives notice to the employee of the length of that period or of the date on which it will end.
    
    

        (6) The duty to hold a meeting does not apply if—
    
    

    (a) it is not practicable to hold a meeting within the period that is reasonable, and
    
    (b) the employer complies with sub-paragraph (7).
    
    

        (7) Where sub-paragraph (6)(a) applies, the employer may consider the appeal without holding a meeting provided he considers any representations made by the employee.
    
        (8) The employer shall give the employee notice of his decision on the appeal as soon as is reasonably practicable after the date of the meeting or, if sub-paragraphs (6) and (7) apply, his consideration of the appeal.
    
        (9) A notice under sub-paragraph (8) shall—
    
    

    (a) where the decision is to accept the appeal, state that it is accepted and—
    
    
    (i) where the decision is that the employee's employment will continue indefinitely, state that fact, or
    
    (ii) where the decision is that the employee's employment will continue for a further period, state that fact and specify the length of the period or the date on which it will end,
    
    

    (b) where the decision is to refuse the appeal, confirm that the employer wishes to retire the employee and the date on which the dismissal is to take effect.
    
    

        (10) All notices given under this paragraph shall be in writing and be dated.
    
    Right to be accompanied
         9. —(1) This paragraph applies where—
    
    

    (a) a meeting is held under paragraph 7 or 8, and
    
    (b) the employee reasonably requests to be accompanied at the meeting.
    
    

        (2) Where this paragraph applies the employer must permit the employee to be accompanied at the meeting by one companion who—
    
    

    (a) is chosen by the employee;
    
    (b) is a worker employed by the same employer as the employee;
    
    (c) is to be permitted to address the meeting (but not to answer questions on behalf of the employee); and
    
    (d) is to be permitted to confer with the employee during the meeting.
    
    

        (3) If—
    
    

    (a) an employee has a right under this paragraph to be accompanied at a meeting,
    
    (b) his chosen companion will not be available at the time proposed for the meeting by the employer, and
    
    (c) the employee proposes an alternative time which satisfies sub-paragraph (4),
    
    

    the employer must postpone the meeting to the time proposed by the employee.
    
        (4) An alternative time must—
    
    

    (a) be convenient for employer, employee and companion, and
    
    (b) fall before the end of the period of seven days beginning with the first day after the day proposed by the employer.
    
    

        (5) An employer shall permit a worker to take time off during working hours for the purpose of accompanying an employee in accordance with a request under sub-paragraph (1)(b).
    
        (6) Sections 168(3) and (4), 169 and 171 to 173 of the Trade Union and Labour Relations (Consolidation) Act 1992[64] (time off for carrying out trade union duties) shall apply in relation to sub-paragraph (5) above as they apply in relation to section 168(1) of that Act.
    
    Dismissal before request considered
         10. —(1) This paragraph applies where—
    
    

    (a) by virtue of paragraph 6 an employer is under a duty to consider a request;
    
    (b) the employer dismisses the employee;
    
    (c) that dismissal is the contemplated dismissal to which the request relates; and
    
    (d) the operative date of termination would, but for sub-paragraph (3), fall on or before the day on which the employer gives notice in accordance with paragraph 7(6).
    
    

        (2) Subject to sub-paragraph (4), the contract of employment shall continue in force for all purposes, including the purpose of determining for any purpose the period for which the employee has been continuously employed, until the day following that on which the notice under paragraph 7(6) is given.
    
        (3) The day following the day on which that notice is given shall supersede—
    
    

    (a) the date mentioned in sub-paragraph (1)(d) as the operative date of termination; and
    
    (b) the date defined as the intended date of retirement in paragraph (a), (b) or (c) of paragraph 1(2) as the intended date of retirement.
    
    

        (4) Any continuation of the contract of employment under sub-paragraph (2) shall be disregarded when determining the operative date of termination for the purposes of sections 98ZA to 98ZH of the 1996 Act.
    
    Complaint to employment tribunal: failure to comply with paragraph 2
         11. —(1) An employee may present a complaint to an employment tribunal that his employer has failed to comply with the duty to notify him in paragraph 2.
    
        (2) A tribunal shall not consider a complaint under this paragraph unless the complaint is presented—
    
    

    (a) before the end of the period of three months beginning with—
    
    
    (i) the last day permitted to the employer by paragraph 2 for complying with the duty to notify, or
    
    (ii) if the employee did not then know the date that would be the intended date of retirement, the first day on which he knew or should have known that date; or
    
    

    (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
    
    

        (3) Where a tribunal finds that a complaint under this paragraph is well-founded it shall order the employer to pay compensation to the employee of such amount, not exceeding 8 weeks' pay, as the tribunal considers just and equitable in all the circumstances.
    
        (4) Chapter 2 of Part 14 of the 1996 Act (calculation of a week's pay) shall apply for the purposes of sub-paragraph (3); and in applying that Chapter the calculation date shall be taken to be the date on which the complaint was presented or, if earlier, the operative date of termination.
    
        (5) The limit in section 227(1) of the 1996 Act[65] (maximum amount of a week's pay) shall apply for the purposes of sub-paragraph (3).
    
    Complaint to employment tribunal: denial of right to be accompanied
         12. —(1) An employee may present a complaint to an employment tribunal that his employer has failed, or threatened to fail, to comply with paragraph 9(2) or (3).
    
        (2) A tribunal shall not consider a complaint under this paragraph in relation to a failure or threat unless the complaint is presented—
    
    

    (a) before the end of the period of three months beginning with the date of the failure or threat; or
    
    (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
    
    

        (3) Where a tribunal finds that a complaint under this paragraph is well-founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks' pay.
    
        (4) Chapter 2 of Part 14 of the 1996 Act (calculation of a week's pay) shall apply for the purposes of sub-paragraph (3); and in applying that Chapter the calculation date shall be taken to be the date on which the relevant meeting took place (or was to have taken place).
    
        (5) The limit in section 227(1) of the 1996 Act (maximum amount of a week's pay) shall apply for the purposes of sub-paragraph (3).
    
    Detriment and dismissal
         13. —(1) An employee has the right not to be subjected to any detriment by any act by his employer done on the ground that he exercised or sought to exercise his right to be accompanied in accordance with paragraph 9.
    
        (2) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that he accompanied or sought to accompany an employee pursuant to a request under paragraph 9.
    
        (3) Section 48 of the 1996 Act shall apply in relation to contraventions of sub-paragraph (1) or (2) above as it applies in relation to contraventions of certain sections of that Act.
    
        (4) Sub-paragraph (2) does not apply where the worker is an employee and the detriment in question amounts to dismissal (within the meaning of Part 10 of the 1996 Act).
    
        (5) An employee who is dismissed shall be regarded for the purposes of Part 10 of the 1996 Act as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he—
    
    

    (a) exercised or sought to exercise his right to be accompanied in accordance with paragraph 9, or
    
    (b) accompanied or sought to accompany an employee pursuant to a request under that paragraph.
    
    

        (6) Sections 128 to 132 of the 1996 Act (interim relief) shall apply in relation to dismissal for the reason specified in sub-paragraph (5)(a) or (b) above as they apply in relation to dismissal for a reason specified in section 128(1)(b) of that Act.
    
    
    
    

[63] Employment Rights Act 1996 (c.18); section 95 has been amended by section 57 of, and by Schedule 1, paragraph 29, and Schedule 2 to, the Employment Relations Act 2004 (c.24), and by regulation 11 of, and paragraph 3(1) and (7) of Part 1 of Schedule 2 to, S.I. 2002/2034    [Back]