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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6305
Experience:  15 years experience of advising on employment law matters
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Default Retirement age legislation 2011. I asked a question

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Default Retirement age legislation 2011. I asked a question on Saturday and now the employers solicitor has come back saying I have got it wrong. They argue that since there was a break in service the six months rule is not relevant. They are not denying it existed and they say "The legislation did indeed provide that if the employer agreed to postpone the retirement date, and the postponement was greater than 6 months, then if the employer later wanted to forcibly retire the employee then the employer had to go through another retirement process." They seem to say that the break in service of 4 weeks and my agreement to that overrides the six months rule.
I will summarise my position again.
Default Retirement Age 2011. I am 73 and have worked as an hourly paid part time lecturer continuously since 1996 years and have been accepted as a permanent part time employee. In February 2011 the Institution decided to forcibly retire all employees who were 65 or older by 30 September 2011 under the new DRA regulations. I appealed and we reached a compromise where I agreed to resign from 31 July 2011 but I would receive further reduced employment after a four week break of employment. I signed a resignation form on 21 July 2011 but not a formal compromise agreement. In the event my work could not be replaced and I was re-employed on exactly the same basis as before with no reduction. I understood that this negated the forced retirement because I was re-employed on the same terms for more than six months ie until the present. My question is, if I am now made redundant will the period for the calculation of redundancy pay be back to 1996 or back to 2011?
There was an agreed break in service during August 2011. However there are no classes during August and the only work is marking re-sit exam papers. I did mark these papers over about one hour. In that sense the break was more notional than real but nevertheless it was agreed by both me.
Each year in mid September I receive a letter of confirmation and the schedule of class hours for the year. These were the same in 2010-11 as in 2011-12 i.e. before and after the forced retirement.
In effect I have received two pieces of advice one saying that the re-employment on the same terms for more than six months is the key factor and one saying that it is not.
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
taratill :

Hi thanks for coming back to me. When I answered the question last week I understood that there was not, in fact, a break in service. In all the years that you worked what normally happened in August did you work more than then remarking that you mention in the quesiton.

Customer:

There was normally no formal work but marking. I would revise lecture notes and make modifications to laboratory experiments. I did this as normal in 2011 but the only formal activity was the marking. I had keys and an office desk so there was no formal structure and I never had to report to anyone.

taratill :

So is the difference that you had no formal report?

Customer:

There was really no difference. Are you saying that if it is accepted that I had a break in service the six months rule in the legislation is not relevant? I assumed at the time that because by September when my teaching duties for 2011-12 started again and that surprisingly that there was no change in my duties for the next year ie more than six months, that I had after all won my argument and was not retired. Are you saying that in law it is the break in service and not the six months rule which determines my redundancy dates.

taratill :

I'm saying that if there was no break of service then there can be no argument that you were retired under the Default Retirement Regulations in the first place and the 6 months rule will not be relevant at all.

taratill :

I think your employer is trying it on here. If factually there was no break in service and you have worked without break since 1996 then you should have continuous service since then.

taratill :

Any attempt to say otherwise, in my view, is not only incorrect but amounts to age discrimination.

Customer:

Ok however I want to argue two points that in spite of the fact that I agreed in writing to retire. First that there was no real break in service. Second, if point one fails, that the institution tried to forcibly retire me but lost the protection of the DRA regulation by continuing to employ me allbeit with a contrived break by employing me again under the same conditions for more than six months.The Second point is the one I need reassurance on if you can. Do I at least have a case on the second point which I could leave to an ET judge to consider or does the break in service, if it exists, override the six months rule.

taratill :

If there was a month's break in service then retirement occurred at the start of the break and the 6 month deferment rule would not be relevant. You would be engaged on a new contract.

Customer:

I am surprised that the DRA six months regulation appears to have little meaning but thank you for clarifying this. One final attempt if I may. Can I argue that the institution clearly intended to continue my employment for another year on the same terms and contrived a months break that had no real meaning and pressured me to sign the retirement letter in order to reduce my future redundancy rights. If so are they allowed to do this?

taratill :

Yes your case needs to be based upon this premise. You should also claim that it amounts to age discrimination that they have done this.

taratill :

Ultimately this is quite a complex matter If you are going to bring a claim it may be worth asking someone to look over the documentation you have in regards ***** *****

taratill :

This is obviously a question and answer site so I can give you an opinion based upon what you say but not detailed advise as I do not have access to all of the 'evidence'.

Customer:

Many thanks

taratill :

No problem and all the best with it. On the basis of what you have told me you should fight this. Please do remember to rate my answer as I am not otherwise credited for my time.

taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6305
Experience: 15 years experience of advising on employment law matters
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