AGE RETIREMENT PROCEDURE FOR SCHOOL BASED STAFF AT OR OVER 65 YEARS OF AGE

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1 AGE RETIREMENT PROCEDURE FOR SCHOOL BASED STAFF AT OR OVER 65 YEARS OF AGE Name of School: Date by which School have adopted procedure: Date by which the procedure was last reviewed: February 2009 Anticipated review date by Children s Services HR and Trade Unions: 2009/2010 academic year Signature of Chair of Governors: Cumbria County Council Children s Services 1

2 CUMBRIA COUNTY COUNCIL CHILDREN S SERVICES RETIREMENT PROCEDURE FOR EMPLOYEES IN SCHOOLS AT OR OVER 65 YEARS OF AGE 1. Purpose The school's normal retirement age for all employees is 65. However, an employee can request to work beyond the retirement age of 65. The school must seriously and genuinely consider any request of this nature. Retirement will not constitute unfair dismissal if it is at or after age 65 and the school has followed the duty to-consider procedure. 2. Age Discrimination Duty to Consider Procedure So far as age discrimination is concerned, the key issue for those dismissed from age 65 onwards will be whether the reason for dismissal was retirement. This will be determined according to the new unfair dismissal provisions in the Employment Rights Act, set out in Schedule 8 to the age regulations. This specifies that dismissal on an intended retirement date will be taken to be the only reason for dismissal. Schedule 6 of the regulations sets out a duty to consider working beyond retirement, if an employee is to be retired. The procedure below is intended to provide an opportunity for employees who wish to apply to work beyond the normal retirement age of 65 years, to do so. 3. Role of Headteacher/Chair of Governors 3.1 The Headteacher is responsible for operation of this procedure for all other employees. 3.2 The Chair of Governors, or another Governor appointed for this purpose by the Governing Body, is responsible for operation of this procedure in the case of the Headteacher. 4. Notice Periods for Staff Notice periods for employees for the purposes of this procedure shall be as follows: Support Staff: For all support staff, the contractual period of notice to which an employee is entitled is defined in the contract of employment (Statement of Particulars). The minimum statutory notice is given below and the period of notice to be given shall be the longest period of either the contractual or statutory provision. Continuous employment Minimum notice Statutory Provision Four weeks or more but less than two years one week Two years or more but less than twelve years one week for each year of continuous service Twelve years or more not less than twelve weeks 2

3 4.1 Teachers: The conditions of service for teachers (the Burgundy Book) makes provision for retirement at the end of the school term in which the age of 65 is attained. All teachers shall be under two months' notice and in the summer term three months' notice with employment terminating at the end of a school term. School terms are defined as follows: Autumn term 1 September to 31 December Spring term 1 January to 30 April Summer term 1 May to 31 August Where a teacher has been continuously employed for more than eight years, s/he shall be entitled to receive additional notice to the end of the school term under the Statutory Provisions as specified in Paragraph 4.1 above (except to the end of the summer term). This entitles teachers who have completed: 9 years service to 9 weeks notice 10 years service to 10 weeks notice 11 years service to 11 weeks notice 12 years service or more to 12 weeks notice 5. Guidelines: Notification of right to request to continue working 5.1 When writing to the employee, it is good practice to set out how the retirement process will be managed (suggested letters are appended to this procedure). The employee should be reminded of the school s obligation to give consideration to any request to work after the normal retirement age and in order not to raise the expectations of the employee; it should be made clear that the school is entitled to refuse the request. The school is not required to give a reason for the decision and, if the retirement procedure has been followed correctly, the reason for dismissal will always be retirement. 5.2 However, giving reasons and a more detailed explanation of the school s retirement policy may enable the employee to leave with dignity and respect and help maintain good workplace relationships with other employees. Schools should use as much tact and sensitivity as possible. 5.3 If the school chooses to give reasons for refusing the request, time should be taken to consider what is going to be said and how it is going to be said to the employee. Schools must be careful not to suggest that they might be discriminating against the employee on the grounds of race, gender, disability, sexual orientation or religion or belief. 5.4 If the school fails to notify the employee at least six months (but no more than 12 months before the intended date) in advance of retirement of the right to request working beyond retirement, it may be liable to pay compensation yet have an on-going duty (up until two weeks before the retirement dismissal) to inform the employee of both the intended date and her/his right to request working longer. Failure to do this will make the dismissal automatically unfair. 5.5 If the school fails to inform the employee of their intended retirement date and of their right to request to continue working, the employee will still be able to make a request not to 3

4 retire at any stage until dismissal. If the employee does make a request, the employment must continue until the day after the school notifies the employee of the decision on the request. This is the initial decision as any appeal hearing can be held after the retirement has taken effect. Dealing with the request: 5.6 If retirement is by mutual consent, there is no need to follow the procedure. However, if the employee requests in writing not to be retired, this request must be considered before the employee is retired. Failure to do so will make the dismissal automatically unfair. The Headteacher must meet the employee to discuss the request within a reasonable period of receiving it (unless agreeing to the request or it is not practicable to hold a meeting) and inform the employee in writing of the decision as soon as reasonably practicable. The employee s employment continues until s/he has been informed by the Headteacher of the decision on the request. 5.7 As preparation for the meeting with the employee, it is good practice to reflect on the positive reasons why an extension should be granted, in particular: Savings to the school in recruitment and induction/training costs Retaining the valuable experience and knowledge of the employee. Headteachers should use their best endeavours to avoid making stereotypical assumptions about the capabilities of the employee. Each request should be considered on an individual basis including taking into account opportunities to vary the employee s hours or the duties performed. Employees may also request to vary their hours/duties etc. or be willing to accept a lower graded post to ease into retirement. The Headteacher is under no obligation to agree to such requests and should make a decision based on the needs of the school. 5.8 Employees are expected to achieve and maintain established standards of performance throughout their employment. These standards do not change once the employee reaches retirement age. One of the key principles behind the Age Discrimination Legislation is that employers should not make assumptions about a person s capability based on age. The fact that an employee has reached retirement age should be disregarded and consideration should only be given as to whether there are any genuine concerns about the employee s health which would justify a medical assessment being undertaken. 5.9 An employee can make only one request in relation to carry on working beyond an intended retirement date. However, if the request is granted and a new intended retirement date is established, it becomes possible for the employee to make a further request to carry on working beyond that revised date. See the flowchart attached at Appendix 3 for ease of reference As long as schools follow this procedure correctly, the normal retirement age of 65 years may be relied on without the dismissal being regarded as unfair or age discriminatory. Where a dismissal is for reasons of retirement, the statutory dismissals procedure will not apply. Pension arrangements: 5.11 It is advisable to suggest to staff who are retained beyond age 65 to check the position relating to pension contributions and benefits as it affects them personally. This 4

5 may be done by the employee through contact with the employee s pension scheme/pension provider. Under no circumstances must the school offer advice to individual employees on personal financial matters such as pensions. Retirement and redundancy: 5.12 Retirement is a fair reason for dismissal. In a case where: the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations (duty to consider working beyond retirement), and the contract terminates on the intended date of employment, the retirement of the employee shall be taken to be the only reason for the dismissal by the employer and any other reason shall be disregarded. Therefore, if the retirement procedure is followed correctly then the reason for dismissal is retirement and nothing else. Obviously, veering off the retirement procedure opens up the possibility that, either the reason for dismissal will not be retirement; e.g. it could be redundancy or that the reason could still be retirement but that the dismissal is unfair. 6. Procedure From 1 October 2006 employees who wish to work beyond the school s retirement age of 65 years will have the right to request to do so under the Employment Equality (Age) Regulations Retirement procedure in respect of the requirements from 1 April 2007: Notification of retirement 6.1 Headteachers will follow the statutory process for notifying employees of their forthcoming retirement. This must happen when any employee is nearing age The employee is to be notified in writing at least six months (but no more than twelve months) in advance of the intended retirement date. (This is necessary even if contracts or policies already state the retirement date. See model letter at Appendix 1.) 6.3 The employee will be informed in the letter that s/he will have the right to request to work beyond the retirement date. 6.4 An employee who wishes to continue with their intended date of retirement should notify the Headteacher by completing and returning the attached form (see Appendix 2). Any employee who wishes to continue working beyond age 65 may request that their employment continue indefinitely, for a stated period or until a stated date. Working beyond retirement: 6.5 The employee s request to continue working should be made in writing (utilising the form attached at Appendix 2) to the Headteacher no less than three months but not more than six months before the intended date of retirement. For a Headteacher their request should be made in writing to the Chair of Governors. 6.6 The Headteacher must arrange to meet with the employee to discuss the request (unless agreeing to the employee s request. In such cases it will be necessary to amend 5

6 the employee s contact in order to reflect the revised intended retirement date and employment pattern if it is to be changed). The meeting must be held within a reasonable period of the request being received. Both the Headteacher and the employee must take all reasonable steps to attend the meeting. 6.7 A trade union representative or work based colleague may accompany the employee at the meeting, put the employee s case and confer with the employee during the meeting. However, the trade union representative or colleague should not answer questions that are put to the employee by the Headteacher. 6.8 Although the employee can seek to continue to work beyond the age of 65 for an indefinite period, it is up to the Headteacher to agree to this or whether s/he would prefer the employee to continue working for an agreed period of time, for example one year. 6.9 Following the meeting, the Headteacher will inform the employee in writing of the decision. NOTE: The age regulations do not require the Headteacher to give a reason for refusing the employee s request to work on. But practically, the Headteacher may wish to discuss the circumstances around the decision. Appeal: 6.10 The employee may appeal the decision if her/his request was refused in its entirety or if it was accepted for a shorter period of time than the employee requested. S/he has five calendar days after the date s/he was notified of the decision to refuse her/his request, to set out her/his grounds for appeal. This should be done in writing to the Headteacher. The Headteacher may then accept the request, in which case the Headteacher must set out in writing the new working arrangements and the date of commencement within 14 calendar days of receipt of the notice of appeal If the Headteacher does not accept the appeal request s/he must arrange for an appeal hearing to be held with 14 calendar days of receiving the notice of appeal The appeal will be heard by a panel of three governors who have not previously been involved with the decsion (in the case of an appeal by a Headteacher this panel cannot include the chair of governors) The procedure at the appeal hearing will conform to the procedures (as set out for appeals) under the terms of the school s Grievance Procedure Where the appeal is not granted, the employee will be informed, in writing, within five calendar days of the hearing of the appeal. No further right of appeal exists within the school. Policy agreed by management (following vetting by the LA s Legal Services) and Trade Unions on 11 February 2009 Adopted by Governing Body On (Date) Signed Chair of Governors 6

7 Appendix 1 To be sent to employees notifying them of their retirement date (on or after 1 April 2007). This letter must be sent at least six months (but no more than twelve months) prior to the intended retirement date. Dear Intended Retirement Date From our records we note that you reach the age of 65 on (insert date) which is the retirement age for employees at this school. You may also be aware that in line with the school's intended retirement procedures you can request to work beyond the age of 65 if you wish. I enclose a copy of the current guidelines, which outlines the process if you wish to seek to carry on working. If you want to apply to work beyond 65 you will need to submit your request in writing to me on the attached pro-forma (see appendix 2). Any request should be submitted to me by (insert date- this should be at least 3 months before the intended retirement date I will give careful consideration to any request you may make to work beyond your retirement date as given above. I will arrange a meeting with you to discuss the matter. You are entitled to be accompanied by a trade union representative or colleague at this meeting. Within any application, you should indicate how long you might want the extension to last. You need to be aware that the school can refuse any such request and is not required by law to give a reason. If you wish to retire on your intended retirement date as detailed above, please complete the attached pro- forma accordingly (Appendix 2) and return it to me by the date given above in order to allow sufficient time to be available to arrange your departure/pension etc. If you have any queries regarding your retirement or the contents of this letter, please do not hesitate to contact me. Yours sincerely Headteacher 7

8 Appendix 2 Expression of interest to be considered for employment beyond the age of 65 Section 1 - To be completed by the employee (Please tick ONE box below and complete any related details before discussions with the Headteacher). I wish to proceed with my intended retirement date at age 65; I wish to request, as under paragraph 5 of Schedule 6 of the Employment Equality (Age) Regulations that I continue to work beyond the age of 65. I wish to work on: Indefinitely - yes*/no* Name in block capitals For a stated period /until a certain date - yes*/no* (Please specify the period requested ) (*delete as appropriate) Employee signature Date Please return this slip as soon as practicable and in any event no later than three months (insert date) before your 65 th birthday/retirement date. Section 2 - To be completed by the Headteacher I support this application to work beyond the age of 65. I do not support this application to work beyond the age of 65. I confirm that the above-named employee does not wish to work beyond the intended retirement date and the school should proceed with the retirement date as planned. Headteacher s signature Date 8

9 Appendix 3 Flowchart for the process of intended retirement and extended working (For illustration only - does not form any part of the Procedure) Employee is nearing age 65. Employee is given details of intended date of retirement in writing within 6-12 months of the retirement date. The letter informs the employee of their 'right to request' to continue working beyond age 65 retirement date. Employee indicates does not want to continue working proceed with retirement at the intended date. Within 3-6 months of the intended retirement date, the employee makes a request to continue working. Headteacher must hold face-to-face meeting with employee in a reasonable timeframe to discuss and consider their request. Headteacher gives written advice to the employee as soon as reasonably practicable of decision. AGREED NOT AGREED Employee carries on working towards new intended retirement date. Employee retires at original intended retirement date OR decides to appeal within five calendar days after receiving the decision. Process to be repeated each time the employee nears their new retirement date. Only one appeal allowed - request either agreed OR retirement confirmed. 9