This case concerned the statutory right to request to stay on beyond retirement age and in particular paragraphs 2 and 5 of Schedule 6 of the Employment Equality (Age) Regulations 2006.


R&R operated a normal retirement age of 65. Six months before his 65th birthday, R&R wrote to Mr Bailey and stated that he would have to retire when he was aged 65 whilst reminding him of his right to request to continue working beyond retirement age. Mr Bailey replied stating that he wished to continue working. Mr Bailey was told that it was company policy to retire at 65 and, although the possibility of part time work was discussed, this was not acceptable to Mr Bailey. His employment with R&R therefore terminated.

Mr Bailey subsequently brought claims for age discrimination, wrongful dismissal and unfair dismissal. The Employment Tribunal dismissed each of his claims.  He appealed only against the dismissal of his claim of unfair dismissal.

The EAT’s decision

Mr Bailey’s appeal focused on the (now repealed) Employment Equality (Age) Regulations 2006 and the formalities involved in making a request to continue working beyond retirement. Under the Regulations, a request to continue working must be made in writing and specify that it was made under Paragraph 5(3) Schedule 6. Any request which did not specify this would be invalid and an employer would not be obliged to consider it.

Mr Bailey had not mentioned para 5 of the Regulations and the EAT did not interfere with the Employment Tribunal’s judgment in this regard. The EAT found that his letter was invalid.

However, the EAT went further and held that, as part of their duty to notify an employee of their right to request not to retire, an employer must inform the employee of the essential conditions for a valid request to be made.

The result in this case was that, as R&R had not complied with its duties, Mr Bailey’s dismissal was unfair. The EAT substituted its decision for that of the Employment Tribunal and Mr Bailey was awarded £4,455.

The judgment is available here.

Bailey -v- R & R Plant (Peterborough) Ltd [2011] UKEAT 0370_10_1805