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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48172
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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- I have a complicated employment situation and need some

Resolved Question:

Hi - I have a complicated employment situation and need some advice. My employer changed my location and role about 7 months ago and as a result I gave notice that I would take early retirement. Until the change in location and role I had no intention of retiring before 65 (I'm 58) but found the new role too onerous. I was therefore going to leave the company at the end of this month. Now the company has announced that it intends to accept applications for voluntary redundancy however they will exclude anyone in the process of retiring. I could withdraw my retirement request and apply for redundancy but feel that they will still exclude me as they know that I intend to go anyway. In retrospect I probably should have discussed possible constructive dismissal when they changed my terms and conditions but wonder what my options are now?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Do you actually have the option of withdrawing your retirement application?

Customer:

Hi - I believe I can withdraw my retirement application - do think otherwise?

Customer:

do you think otherwise?

Ben Jones :

Well it may not actually be possible to do so because a retirement is the same as a resignation – you are effectively handing in your notice and advising your employer that you are terminating your employment. It is not possible to retract one’s resignation unless this is approved by the employer – once notice of resignation is submitted it becomes a binding agreement and the employee would be expected to go through with it and end their employment as agreed, unless the retraction is approved by the employer and they allow you to remain in employment. So it could be that without the employer’s consent you are not actually able to retract your retirement notice.

In terms of constructive dismissal, that is some3thing which should have been done at the time – you must be able to show that you had resigned in response to the employer’s breach of contract and had done so without unreasonable delay. If the alleged breach happened 7 months ago then it is unlikely you can satisfy these requirements so constructive dismissal is now not really an option.

When an employer considers employees for VR they actually have the right to select whoever they want. Saying that, they should not be acting in a discriminatory manner. The best argument you would have in this scenario is to claim that you are being indirectly discriminated because of your age. Specifically, you are being denied the opportunity to apply for VR or be considered for it because you are in the process of retiring and as such are being treated detrimentally due to your age. You can raise this with the employer, even raise a formal grievance if necessary. If you are eventually denied the chance to go down the VR route and your resignation is not allowed to be retracted you can consider making a claim for indirect age discrimination in the employment tribunal.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Customer:

Yes thanks - my question has been answered.

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