Kimbra Welch, Employment Lawyer at Harvey Ingram LLP
However, if we do decide to allow him to continue working for us, we do not want to continue with his private medical insurance or life cover (which we normally give to all of our employees) as this will prove too expensive for the company. Do you see any problems with us agreeing to his continued employment on this basis? If not, what should we do?
Answer:
First, you will have to notify this employee in writing of his right to continue working beyond his normal retirement age of 65 years if he wishes to do so. All employers must notify their employees at least 6 months (but not more than 12 months) before the intended retirement date (in this case, the employee's 65th birthday) of the fact that the employee will retire on this date and that the employee has the right to request to continue working. If the employee wishes to continue working for you then he must apply in writing at least 3 months (but not more than 6 months) before his 65th birthday.
There is not an automatic right to continue working, and if you are not willing to immediately agree to this request then you should wait until you receive a formal written request from him. Once received, you would have to arrange a meeting with the employee to discuss his request within a "reasonable period". At this meeting (and any subsequent appeal) the employee will have the right to be accompanied by a work colleague of his choice. As soon as reasonably practicable after the meeting, send the employee a written response to his request and offer the employee the right to appeal this decision.
If you are concerned about the cost of the contractual benefits, then it may be better to refuse the request, having followed the full procedure (briefly set out above). There is no obligation to provide reasons for the refusal. Providing you have followed the full retirement procedure, then the reason for the dismissal (on the employee's 65th birthday) is deemed to be retirement, and as such will be a fair dismissal.
It will not be possible to agree to continue the employee's employment without the benefit of the private medical insurance or life cover which you currently provide to all employees, as to do so would amount to discrimination on the grounds of his age. Whilst you could try and justify this different treatment, it is unlikely that costs will be accepted as justification. This could leave you exposed to a claim from this employee for the loss of these benefits together with an award for injury to feelings.
For more information on employment law and HR services, please contact Kimbra Welch on kimbra.welch@
http://www.harveyingram.com/
