Can my employer make me retire if I don’t want to?

The age discrimination regulations do in general allow employers lawfully to rely on retirement as a reason for dismissal, but only where they follow the correct procedures and where the worker has reached 65 or the employer’s normal retirement age. The fact that the age regulations provide that no justification is required for dismissals at 65 or above where the correct procedures are followed may well be tested under EU law in due course. However, the following sections explain the position as currently set out in the age regulations.

If your employer has no normal retirement age:

Your rights in this situation depend on whether you are under 65 or not. If you are dismissed when you are under 65 and your employer has no normal retirement age, this cannot be regarded as a retirement dismissal and all the usual unfair dismissal and redundancy rights can potentially apply. If the dismissal is on grounds of your age, you may also have a claim for unlawful discrimination under the age regulations.

However, if your employer tries to dismiss you when you are 65 or above you will have more limited rights to challenge the dismissal:

• If the employer has given you between six months and one year’s notice of retirement, properly notified you of your right to request to continue working, and considered any request that you make, including at the appeal stage, the age regulations exclude the possibility of legal challenge. Where the retirement does indeed take place on the intended date (and not before), the dismissal cannot be regarded as prohibited age discrimination or as in any way unlawful under unfair dismissal or redundancy law. This applies even where the real reason for the dismissal may in fact be something else entirely, for example redundancy or alleged misconduct.
• But where an employer fails to notify properly of your retirement date and your right to request to continue working, you may be able to establish that the dismissal is not because of retirement and that it is a breach of the age regulations and/or unfair dismissal or redundancy law. This may also apply where you are allowed to continue working beyond the intended retirement date.
• If, however, an employment tribunal decides that the real reason for the dismissal is in fact retirement, despite procedural breaches, it may still find that the dismissal is unfair. If there have been no procedural breaches the dismissal cannot be found to be unfair.

If your employer has a normal retirement ages below 65:

If your employer does have a normal retirement age below 65 and wants to retire you at that age against your wishes, this is discriminatory on grounds of age and may well be unlawful. Your employer would, if challenged, have to show that the retirement age is justified under the principles explained earlier in this leaflet. So if there is no reason for the retirement age that is, for example, directly related to the workforce profile or if the employer routinely lets other workers stay on past their retirement age, you may have a good claim.

Even if your employer can establish a justified retirement age, if your dismissal takes effect before that age, this cannot be regarded as a retirement dismissal. The dismissal could therefore still amount to unlawful age discrimination and, in addition, all the usual unfair dismissal and redundancy rights can potentially apply.

But if the employer has established a justified retirement age below 65 and wants to dismiss you at or after that age, the same principles will apply as explained in the previous section for dismissals aged 65 or above where there is no retirement age. Therefore, if your employer does not follow the correct procedures, you may in some circumstances be able to show that retirement was not the real reason for the dismissal, and go on to bring a successful unfair dismissal, redundancy and /or age discrimination claim.

If your employer has a normal retirement age of 65 or above:

Under the age regulations, your employer is not required to justify a dismissal that takes effect at a normal retirement age of 65 or above. But if your dismissal takes effect before your normal retirement age, this cannot be regarded as a retirement dismissal. The dismissal could therefore still amount to unlawful age discrimination and, in addition, all the usual unfair dismissal and redundancy rights can potentially apply. Furthermore, if your employer does not follow the correct procedures, you may still in some circumstances be able to show that retirement was not the real reason for the dismissal, and go on to bring a successful unfair dismissal, redundancy and/or age discrimination claim.