In the case of Ayodele v Compass Group, the Employment Appeal Tribunal has held that an employee’s request to remain in employment after the age of 65 must be considered ‘in good faith’ and an employer cannot rely on a blanket policy of requiring employees to retire at the age of 65; even if such a policy is in place (which is in itself permissible), it must approach requests to be allowed to continue working with an open mind.
Mr Ayodele was informed by his employer of its intention to retire him at age 65 and his entitlement to request an extension. He requested to work beyond 65 but his request was refused without reasons. His appeal against that was also refused without reasons. He brought a claim for unfair dismissal and age discrimination. The ET upheld the Claimant’s claim that he had been unfairly dismissed on the basis that the employer had not given genuine consideration to the request to work beyond 65 and was therefore in breach of their obligations under paragraphs 7 and 8 of Schedule 6 to the Employment Equality (Age) Regulations 2006.
Unusually, at the ET the Claimant gave evidence that there had been substantial discussion of his request, whereas the employer’s witness asserted that he had already decided that the policy would apply rigidly and the meetings were only a formality. On the basis of the employer’s account, the ET and EAT held that a duty to ‘consider’ a request necessarily connoted an obligation to consider in good faith, in the sense that an employer must genuinely consider whether it should be accepted.
The difficulty for employees is that it will usually be very difficult to show bad faith, as no inference can be drawn from the refusal of a request, nor from the fact that a policy exists of not agreeing to such requests.