IN THE UK, there are more than 885,000 people aged 65 and above still working, either full-time or part-time*. This reflects an increasingly common trend of employees needing to work for longer – primarily as a result of a tougher economic climate. Legal developments in recent years have also made it easier for older workers to continue working.
Protection from discrimination
Both older and younger workers are protected against discrimination on the grounds of age. Employers must, therefore, ensure they are not exposed to claims of age discrimination as a result of their policies, practices or the behaviour of managers and staff. In addition to the destructive impact on productivity and workforce morale, successful discrimination claims could involve lengthy and expensive litigation and potentially uncapped compensation.
Direct discrimination on the grounds of age can be easy to spot and therefore simpler for employers to avoid. This arises where a job applicant or worker is treated less favourably because of age without objective justification, for example refusing to employ someone because they are ‘too old’. Indirect discrimination, which is less obvious, arises where an employer applies a provision, criterion or practice that disadvantages job applicants or workers of a particular age group without objective justification. For example, a requirement for a certain number of years’ experience for a job vacancy. Workers are also protected from harassment on grounds of age and from being victimised because they made or intend to make an age discrimination complaint.
Access to training
Changing requirements of the modern workplace mean training and development of staff is crucial for businesses to remain competitive. However, there may be a perception that there is less value in training older workers. A recent survey** found that 92% of business leaders do not intend to invest in training for employees over 60 in 2013.
Employers may assume that older workers will shortly retire. In fact, older workers may ultimately work for longer for their employer’s business than their younger counterparts given the greater job mobility amongst younger workers. Employers may also assume that older workers are less easy to train. Such assumptions create a risk of claims from older workers. Employers should avoid stereotypical assumptions about ability declining with age. Rather, access to training for young and old workers should be assessed objectively based on ability to undergo and benefit from the training.
Establishing when employees intend to retire can be difficult. Asking outright can expose the employer to a claim. Whilst the law recognises the need for organisations to plan and structure their future staffing needs, employers should exercise care to avoid potential liability. One solution is structuring an appraisal-based system, across the whole workforce, with short and long term goals for all employees – young or old. In this context, an employee may be more willing to raise any plans that they have for retirement.
It is unlawful to dismiss an employee based on their age. The traditional route of dismissing employees for retirement at a specified age constitutes direct age discrimination unless employers can objectively justify this or can establish that being below that age is an “occupational requirement”.
Employers must either have no retirement age or set their own retirement age and provide comprehensive justification for doing so. The latter is likely to be challenging. Employers must demonstrate clear evidence why employees at that age ought to retire. Given the difficulties of justification, most employers have no retirement age.
One tricky issue for employers is handling performance management and, if necessary, dismissal. Employers can protect themselves by making their performance assessment as comprehensive, clear and fair as possible. Robust performance management should be reinforced throughout an organisation. This is important to enable employers to performance manage older (and younger) workers and where necessary dismiss them.
Performance criteria should be as clear and objective as possible. The employee advice service, Acas, uses the acronym ‘SMART’ to describe the best sorts of performance targets: specific, measurable, achievable, realistic and time-bound.
Successful performance management is important for employees of any age, but it is likely that courts will closely scrutinise decisions to dismiss older workers at what might be generally considered ‘retirement age’.
The changing workforce presents many challenges for employers. Complaints and claims by employees are time consuming and can be costly. Employers should avoid pre-judging employees’ abilities on grounds of their age and use existing performance management systems to proactively address concerns with employees – regardless of age.
Rebecca Harding-Hill is a partner and Elin Hannah an associate in the employment team at Berwin Leighton Paisner