Retail surgery: Some of my employees are nearly 65 and one of them has a very physical job. Given the plans to abolish the default retirement age, what are my options?

It is unclear at this stage what measures, if any, the Government will introduce to replace the default retirement age (DRA) and associated statutory retirement procedures, and there is unlikely to be any guidance on this until the new year.

Nick Thorpe, partner in Field Fisher Waterhouse’s employment and pensions team, says that under current proposals, employers may still retire employees when they reach 65 if their 65th birthday falls on or before September 30, 2011, provided they follow the statutory procedures and notify the employee of their intended date of retirement before April 6 2011.

But, adds Thorpe: “If the employee’s 65th birthday falls on or after October 1 2011, then the DRA mechanism will no longer apply and you will need to take care when handling discussions with the employee about their future employment.”

One option may be to continue using a compulsory retirement age. “However, to avoid a successful age discrimination claim, you would need to be able to justify the compulsory retirement age and your decision to retire the employee at that age,” says Thorpe. While the employee’s role may be physically demanding, it may be difficult to justify a blanket retirement age at 65 or above.

Another option would be to allow the employee to continue in their role beyond 65, but to discuss their future plans with them.

However, if it becomes apparent the employee cannot cope with the job’s physical demands, you would need to consider implementing capability procedures, which may ultimately result in dismissal.