Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawDismissalRecruitment & retention

Legal opinion: Abolition of the default retirement age

by David Murphy 25 Nov 2010
by David Murphy 25 Nov 2010

The planned abolition of the default retirement age (DRA) offers HR professionals a silver bullet for their ongoing battle to persuade line managers to deal with their employees’ performance issues. It has the potential to reduce the tendency of managers to shy away from delivering tough but necessary performance messages to employees, which usually results in poor performance continuing to the detriment of the business.

Coasting to retirement

Poorly performing employees approaching retirement have often been allowed to carry on in employment until that time. Usually the reason has, at least in part, been benign – not wanting to put a soon-departing employee through the humiliation of a performance-management process, particularly if his or her performance has historically been good, when retirement will allow a dignified and non-confrontational exit.

Planned abolition of the default retirement age

This “head in sand” approach to performance management has been possible because employers have been able to retire staff legally at the age of 65, the DRA, provided that they follow a set procedure. However, the planned abolition of the DRA in October 2011 will make it unlawful for employers to force their employees to retire at a particular age, unless the employer can objectively justify its reasons for doing so. Some employers may be able to do this (for example, employers of air-traffic controllers or firefighters may be able to argue that retirement at a particular age is necessary for health and safety reasons) but others may not. A recent survey carried out by business law firm Fox Williams indicates that employers are reluctant to retain a company retirement age once the DRA has been abolished because of the risk of a legal challenge that a compulsory retirement age is unjustifiable age discrimination.

Good performance management will be key

The inability to rely on the DRA and the difficulties of justifying a company retirement age will make it much more difficult for employers to retire their staff lawfully. Employers will need to establish one of the fair reasons for dismissal set out in legislation, the most obvious of which is “capability” (ie performance or ability to do the job). This will mean that good management of performance will become much more important, as many managers will no longer be able to rely on retirement as a reason for dismissal and as a means of abdicating their responsibility.

As those in HR know all too well, dismissing an employee where there is a lack of contemporaneous evidence of performance problems having been communicated to him or her makes a fair dismissal difficult and increases the company’s legal and financial exposure. In addition, it leaves the door open to the employee to claim that his or her dismissal constitutes discrimination on grounds such as age, sex or race. As a result, any settlement deal usually costs the company more than if it had a record of having followed a proper performance-management process. Therefore, weak managers who are allowed to continue with their current ineffective approach to performance management are likely to cost their companies dear. This will be a particular concern in the case of older employees who may not work again and seek to be compensated accordingly for their lost earnings through a tribunal claim.

What should HR do?

  • Get directors/senior managers to “buy in” to better performance management by explaining the clear business case for it. They can lead the required change in culture and communicate the message to other managers.
  • Work with managers to ensure that all employees have clear job descriptions, responsibilities and objectives.
  • Ensure that all managers hold regular reviews/appraisals with employees (at least once or twice a year).
  • Encourage managers to provide employees with feedback that is clear, accurate and timely.
  • Help management to implement performance-management processes where performance falls below the standard expected.
  • Lead by example in their own teams.

David Murphy, senior associate, Fox Williams LLP

XpertHR FAQs on the abolition of the default retirement age

  • What is the expected timetable for the abolition of the default retirement age?
  • How will the abolition of the default retirement age affect employers that have a compulsory retirement age of 65?
  • After the abolition of the default retirement age, employers will have to justify objectively having a compulsory retirement age. What does this mean?

      Avatar
      David Murphy

      previous post
      RCN conference: getting results in occupational health
      next post
      Two-thirds of UK businesses don’t have enough time or budget to train staff

      You may also like

      P&O Ferries boss denies reputational damage after mass...

      27 May 2022

      Employers lack data to make IR35 worker status...

      25 May 2022

      Maternity leave: Cost of living crisis highlights need...

      25 May 2022

      Employees resigning in 2022: Survey shows ‘great resignation’...

      24 May 2022

      NHS should upskill admin staff to reduce waiting...

      23 May 2022

      City firms pledge to improve social mobility in...

      20 May 2022

      One in five employers planning ‘no jab no...

      19 May 2022

      BNP Paribas banker accused of ’emotional terrorism’ wins...

      19 May 2022

      Nurses leaving due to pressure and workplace culture

      18 May 2022

      Number of working people with disability up 1.3...

      17 May 2022
      • Strathclyde Business School expands its Degree Apprenticeship offer in England PROMOTED | The University of Strathclyde is expanding its programmes...Read more
      • The Search for Talent: Six Major Employer Pitfalls PROMOTED | The Great Resignation continues unabated...Read more
      • Navigating the widening “Skills Confidence Gap” in 2022, and beyond PROMOTED | Cornerstone OnDemand conducted a global study...Read more
      • Apprenticeships are the solution to your recruitment problems PROMOTED | Apprenticeships have the pulling power...Read more
      • What it really means to be mentally fit PROMOTED | What is mental fitness...Read more
      • How music can help to ease anxiety at work PROMOTED | A lot has happened since March 2020, hasn’t it?...Read more

      Personnel Today Jobs
       

      Search Jobs

      PERSONNEL TODAY

      About us
      Contact us
      Browse all HR topics
      Email newsletters
      Content feeds
      Cookies policy
      Privacy policy
      Terms and conditions

      JOBS

      Personnel Today Jobs
      Post a job
      Why advertise with us?

      EVENTS & PRODUCTS

      The Personnel Today Awards
      The RAD Awards
      Employee Benefits
      Forum for Expatriate Management
      OHW+
      Whatmedia

      ADVERTISING & PR

      Advertising opportunities
      Features list 2022

      • Facebook
      • Twitter
      • Instagram
      • Linkedin


      © 2011 - 2022 DVV Media International Ltd

      Personnel Today
      • Home
        • All PT content
        • Advertise
      • Email sign-up
      • Topics
        • HR Practice
        • Employee relations
        • Equality, diversity and inclusion
        • Learning & training
        • Pay & benefits
        • Wellbeing
        • Recruitment & retention
        • HR strategy
        • HR Tech
        • The HR profession
        • Global
        • All HR topics
      • Legal
        • Case law
        • Commentary
        • Flexible working
        • Legal timetable
        • Shared parental leave
        • Redundancy
        • Maternity & Paternity
        • TUPE
        • Disciplinary and grievances
        • Employer’s guides
      • AWARDS
        • Personnel Today Awards
        • The RAD Awards
        • OHW Awards
      • Jobs
        • Find a job
        • Jobs by email
        • Careers advice
        • Post a job
      • XpertHR
        • Learn more
        • Products
        • Pricing
        • Free trial
        • Subscribe
        • XpertHR USA
      • Webinars
      • OHW+