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Can an employee be made to retire from work? Ask the expert

Paul Jackson

Tuesday, April 10, 2018

Can an employer force someone to retire?

Employers used to be able to force workers to retire at 65, this was known as the Default Retirement Age, however, this law was scrapped in April 2011.

This means that employees can keep working beyond 65 if they want to or need to and are capable of undertaking.

There are exceptions in some situations where an employer can force employees to retire by law, but they must give a good reason why. Employees may be asked to retire early if the job:

• requires employees to have a certain level of mental or physical abilities, or
• has an age limit set by another law

If employees are forced to retire, the employer must follow a fair procedure, maybe even look at alternatives and then give the employee enough notice.

Employers still have the right to make redundancies and dismiss employees if they are underperforming, but these decisions should be based on objective criteria and not because of the individual's age.

Do employees still get a State Pension if they continue working?

The ‘State Pension age’ is the earliest age an individual can claim the State Pension.

As the individual approaches State Pension age, they will be given
a choice of whether to claim or delay their State Pension payments. The individual can still claim their State Pension while they are working but they may wish to defer it, which can have some financial benefits.

Any private or workplace pension scheme may have an earlier age where they can start receiving their pension (usually 55), even while they are still working. Schemes vary so ask the fund or employer about how your pension is affected if you change your work arrangements or continue working beyond State Pension age.

Expert employment solicitor Paul Jackson answers some questions and explains the rules around retirement.

Video Transcript

Can an employee be made to retire from work?
There are instances and we all know this where a worker an employee is not doing their job so well, maybe even doing it badly and there are instances where perhaps some of us comes to the end of our working life in a particular job and where perhaps we even compromise that the safety and well-being of those around us. In an instance like that an employer can genuinely say I'm thinking typically might be an older worker might not but might be this person now does need to do something different because they're not performing well and that would be a capability issue, that would justify perhaps a person now but again it will be based on the individual it should not be based, on oh they're over a certain number in terms of their age based on this individual happens not to be performing so well and there it can be justified.

Can employers justify putting a retirement age in their terms and conditions?

For the last few years, it's been the law that you generally don't have a compulsory retirement age it needs to be down to what the individual can do so the short answer the simple answer to that is no.

Can an employer retire an older employee whose performance has deteriorated but who is reluctant to retire voluntarily?

Certainly when it becomes a capability issue person really is managing to do the job well then it is possible to ask that person to leave that job but to do it on grounds of retirement is possibly the wrong way to do it it's more a capability issue and it's down to doing it hopefully gently and reasonably by the employer but if there are objective reasons like that, of course, it is right that something should be done as fairly and gently as possible looking at alternatives.

About the Expert

Paul read law at Cambridge and trained at Clifford Chance LLP in the City of London. He specialises in employment law, commercial law and civil litigation including advocacy in employment tribunals and the civil courts as a Higher Rights Advocate.

Before working for more than ten years in the City of London as a solicitor he worked in commerce including publishing and corporate finance.

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