Jersey: Do You Employ Staff Of Pensionable (Or Nearly Pensionable) Age?

Last Updated: 2 October 2013
Article by Colette Hunt

Whilst every employee has to cope with the fact that they are getting older and they can do nothing about it, every employer has to be able to deal with the retirement of all of its employees.

Although there is no legal requirement in Jersey, it is advisable to have a retirement policy in place. Having such a policy will remove at least some uncertainty that your employees may have as they approach retirement age.

Currently in Jersey, "pensionable age" is defined as aged 65 in the Social Security (Jersey) Law 1974, but of course this may increase in the future.

Part of any Staff Handbook or Employee Guide should include a retirement policy, which would state either that you require staff to retire at the normal retiring age for a person in their position, or at the statutory retirement age, or pensionable age, or as in England, that there is no fixed retirement age but it is acknowledged that this will be reviewed and may change subsequently. Whilst many large organisations and international businesses may already have such a policy, many SMEs and newly formed businesses may not yet have given the process for the retirement of its staff, sufficient, or indeed any, consideration. Those with an existing retirement policy in place need to ensure that they apply it and in order to minimise the chance of a claim being made to the Employment Tribunal ("the Tribunal"), they need to ensure that they are applying the policy consistently.

In June 2013, the Tribunal considered a claim for unfair dismissal initiated by a retired 65 year old man (Mr N) against his former employer, a shipping company, who was made to retire shortly after his 65th birthday. Part of the evidence given included the fact that despite the company having a policy to retire staff at their 65th birthday, a number of employees had been allowed to continue to work on beyond their 65th birthdays for varying durations. The inconsistency in the application of the policy seems to have been the motivating factor for Mr N to bring his claim. He felt that he was being treated less favourably than other employees; the company were insisting that he retire when others had been allowed to work on.

Mr N's claim for unfair dismissal failed because Article 74(1) of the Employment (Jersey) Law 2003 ("the Law") provides an upper age limit of 65 in respect of such claims.

Whilst Article 61 of the Law provides for the right for an employee not to be unfairly dismissed, this does not apply in cases where an employee has attained normal retiring age for a person in that position with that employer, or in any other case, at pensionable age.

Although the company did not have to pay Mr N an award for unfair dismissal (because of the effect of Article 74), by not strictly and consistently applying its own retirement policy, it ended up in a dispute, found itself having to defend its previous decisions and have its actions scrutinised by the Tribunal.


Except in the limited situations provided under the Law, the right to claim unfair dismissal is not available to an employee who, on or before the effective date of termination, has reached retirement age in accordance with any of the criteria below:

a) where men and women have the same retirement age, the normal retirement age for the position within the undertaking.

b) in an organisation where there are different retirement ages for men and women, when the higher of the two normal retirement ages for the position has been reached.

c) In any other case, when pensionable age has been reached as defined under the Social Security (Jersey) Law 1974.


(i) On an on-going basis

Ask, consult or discuss with all employees about their employment plans and desires for the future – where do you see yourself in five years' time? And in ten years' time? However, as any employee is entitled to change their mind and choose to retire earlier than pensionable age, you should not rely too heavily on their responses when undertaking your own business planning and budgeting.

(ii) In the year before the employee is due to Retire

When you have an employee who is approaching retirement age, you should write to them in advance of their pending birthday (perhaps 6 months or so before this), to inform them that you will be requiring them to retire at their next birthday (usually their 65th).

Then, closer to their birthday (perhaps the month prior to their birthday), you should again write to the employee to remind them of their retirement and inform them of the date of their last working day, when they will receive their final pay and set out any other details of actions that will need to be taken by you or by them, on or before their last working day.

You need to be alive to the fact that it may be difficult for some employees to accept that they are coming to the end of their working life or career, and where possible assist in making their transition to post working life as seamless as possible. You also want to minimise the effect of their retirement on your business.

(iii) What if you overlook the employee's "big" birthday and continue to employ them beyond retirement age ?

In the absence of you applying a retirement policy or their contract stating a retirement age, or you informing the employee that you have terminated their employment due to their reaching pensionable age, then the employment relationship will continue. If you subsequently dismiss them, although they would not succeed with any claim for unfair dismissal, they would be entitled to all their contractual rights and benefits, including bonuses and commissions.

(iv) What if an employee requests to work on beyond the normal retiring age?

You need to carefully assess their position and the demands of the duties associated with their role, before providing a written response to them which confirms your decision.

You need to consider whether there is any additional health risk for someone who is older than the normal retiring age being allowed to continue to undertake their duties. If they do a physical demanding or manual job, even if the employee appears to be very fit and healthy, you should consider taking medical advice before agreeing to continue to employ them.

You also need to check the terms and conditions of your insurance policies (employers' liability, public liability and professional indemnity) to check they would still be covered in the event of a claim being made involving them or their work.

(v) What if you want to retain the skills or experience of an older employee?

You may have previously invested a lot of time and expense in training a senior employee over the years and may feel that you are not ready to lose that just yet.

Essentially, there are two options.

First, you can offer the retired employee a new fixed term contract, which would take effect after they have retired. This need not be full time or to involve all of the same duties that they undertook prior to retirement. It may suit you, as well as them, for them to work reduced hours or to allow them to work more flexibly than they previously did.

Alternatively, the retired employee could be offered a service contract or consultancy agreement. This would involve a document being drafted and signed by both parties which sets out the various agreed terms including defining the services that they would provide to your business. If there is any uncertainty on your part at that time about how busy your business may be in the short to medium term, this may be the preferred option.

As the retired employee would now be self employed, you would have far less administration associated with them – you would no longer have to issue a wage slip to them, no longer have to deduct income tax or account to the income tax department each month, and no longer have to pay employers' social security contributions on their behalf.

Payment to them for their services would be per job or project that you have assigned to them. They would submit an invoice to you either for an agreed fixed sum or at agreed rates.

In the event that the health of the former employee then fails either suddenly or over a period, such that they are unable to continue to provide the services in accordance with the agreement, it would simply lapse. You would not owe them any sum other than in respect of work they have previously undertaken for you for which you have not yet been invoiced for.

A prudent employer will consider the situation on an employee by employee basis and prior to the relevant birthday of the employee, will seek some advice, so they are adequately prepared.

If age is subsequently added as an attribute after the proposed enabling law in Jersey on Discrimination takes effect, there will also be an impact for employers and no doubt, this will subsequently be the topic of further comment.

Any of our employment team can be contacted in respect of the above and if required, will assist in the drafting of a suitably worded retirement policy, fixed term contract or service agreement.

To view the Employment & Pensions News October 2013 click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions