More and more over-50s are staying in work past state pension age. Camille Renaudon from Hibberts Solicitors looks at practical steps employers can take to avoid age discrimination in their employment policies and practices.
Managing older workers
Since the abolition of the national Default Retirement Age in 2011 there is a consensus that the growth in our older workforce will present challenges, with not enough younger workers coming through into employment, combined with a general downward trend in the migration of workers.
It has been estimated that by 2030 the numbers of over-50s in the overall population will increase by 37% to around 27 million – and with many more choosing to remain in employment, this will bring with it an increasing risk of workplace age discrimination.
Changes in legislation in recent years have led to a welcome increase in the number of resources that provide guidance to employers in relation to older workers through charities such as Age Concern and Age UK, so there is a lot of information out there available to both employers and employees.
As statistics show the numbers and proportion of older workers are increasing, law firms are also receiving more age-related enquiries. Often concerns arise when an employer comes to review their existing staff contracts of employment and handbooks and find that sections haven’t been updated to reflect the abolition of the default retirement age.
Doing nothing is not an option
Another issue we often come across is that employers, particularly in smaller businesses, are so concerned about doing the wrong thing that they may do nothing, including sweeping issues under the carpet which would normally be addressed with a younger worker.
This ultimately creates a bigger headache to manage in the long-term, particularly in terms of poor performance, which has often been left unchecked “because of their age”.
While there can be obvious issues that arise when employing older workers – such as ill health, usually due to chronic long-term conditions – the benefits are considerable. Employers say older workers are more committed to their roles, less likely to change job and bring invaluable experience and skills useful for mentoring and supporting younger workers. So how can employers deal with flexible working requests, redundancy issues and retirement?
Communication: Most issues arise when employers make assumptions about what an employee wants when they reach “a certain age” rather than having an open dialogue with their employee.
Flexible working: Any employee is entitled to make a flexible working application if they have worked for the employer for at least 26 weeks, have not made an application in the previous 12 months and is not an agency worker.
An employee does not have to be a parent or carer to request flexible working. Older workers are more likely to remain in employment if they have the opportunity to work flexibly, either by reducing their hours or days, because they may have caring responsibilities for elderly parents and other family members or they may wish to use this flexibility to prepare for retirement.
Redundancy: If you are considering reducing the size of your workforce, ensure you choose an appropriate pool for selection and use relevant and non-discriminatory selection criteria when undertaking a redundancy process. Often, employers think they need advice about a redundancy situation when the facts of the matter suggest they need to deal with performance concerns, which is something entirely different. Employers can make a rod for their own back if they fail to properly address capability issues promptly and consistently.
Retirement: In some circumstances, an employer may set their own retirement age if this can be objectively justified by showing that the decision is a proportionate means of achieving a legitimate aim.
However, this is a complicated area of law and many employers choose not to have a retirement age at all now. Reasons for having one could include upholding health and safety procedures where a role has a high-risk level – such as in roofing or construction, which involved using equipment at heights.
If communication with the employee is poorly handled there will be issues, and rather than retirement being positively managed as a gradual transition process it becomes a contentious issue.
Retirement is also about planning and effectively managing that transition of skills, experience and information to other members of staff through processes such as mentoring so they aren’t lost.
This could be over a phased 12-month period working towards retirement, which also helps the older employee to acclimatise to the forthcoming changes in work pattern and lifestyle.
Keep things open
Open and honest dialogue with staff is essential, and employers need to take the time to review their working practices and ensure they are as open as possible to different working patterns that could help older workers remain with them for longer.
As a starting point, I would recommend employers read the Acas statutory code on flexible working and refer to its Code of Practice in any matters concerning discipline and grievance. There is also a lot of useful information and guidance available on the Age UK website. And while many current employment rules and regulations are common sense, some aspects of discrimination law are technical and it may be worth seeking specialist advice.