In Bailey v R & R Plant (Peterborough) Ltd (2011), the EAT has held that in order to meet the requirement to inform an employee of their right to request working beyond retirement, an employer must have notified the employee of the essential conditions for exercising that right.
In this case, the key issue on appeal was whether the employer had failed in its duty (under paragraph 2(1)) to inform Mr Bailey of his right to work beyond retirement, in particular of the requirement in paragraph 5(3) that the request had to be made in writing and explicitly state it was made under that paragraph. The EAT held the employer had failed to comply with its duty to notify because it had not done so. Given this procedural breach, it found the dismissal for retirement was automatically unfair, albeit non-discriminatory because it accepted the reason for dismissal was retirement. Mr Bailey was awarded a basic award on the basis that retirement would have taken place on the intended date in any event.
Unfortunately, there is no way of employer remedying any defective notices by issuing fresh notices, since the last date for issuing such notices was 5 April 2011 under the now repealed provisions. So these may mean that employees will seek to exploit any such technical breaches and bring unfair and age discrimination claims. Time will tell if the decision is appealed.