A new age for the older employee

With many more people wanting to work beyond the retirement age, there are clear channels to ensure everyone is treated fairly. Adelle Morris, of Grigor & Young and Moray Employment Law in Elgin (pictured), examines the options.

We are all working longer in life. More people are concerned about their pension provision – or a lack of provision – and many are fit and able to work beyond the official retirement age. Others have had their savings eroded by years of low interest rates and face no option but to continue working.
The good news is that studies in the UK show that older employees are reliable workers and businesses can benefit from having them as mentors and role models.

According to a Nationwide Building Society survey in January 2014, workers over 55 are less likely to be absent because of a hangover or to take sick leave. 78% of those polled think it is important that younger colleagues help those over 60 to use new technology at work and 71% believe the introduction of smartphones and tablets has forced older employees to keep up with younger peers. 15% believe they won’t be able to retire until aged 70.

At a breakfast seminar in Elgin, organised by Grigor & Young, the issue of managing older employees in the workplace and the legal implications was under the spotlight for local businesses. The seminar heard that since 2006 it was unlawful to discriminate because of age. The Equality Act 2010 replaced Employment Equality (Age) Regulations, while the Abolition of Default Retirement Age from 6 April 2011 meant it was unlawful to compulsorily retire an employee unless it can be objectively justified.

“As an employer, you still need to be able to plan your workforce requirements in order to meet the future needs of the business. Succession planning is an important part of any business,” said Adelle Morris.

The key is good people management and ACAS Guidance advises that employers should talk to their employees, allowing them opportunities to communicate openly and regularly.

“Regardless of age, there are obvious benefits to discussing an employee’s future aims and aspirations. It can provide you with a great opportunity to discuss your firm’s future work requirements and how these impact on the employee. It can also help you to identify an employee’s development and or training needs,” she added.

Workplace Discussions – what should we talk about?

Moray Employment Law advises that discussions are informal and confidential. Employers must be tactful and should avoid asking outright questions such as: “when are you planning to retire?”

“Ask about the short, medium and long terms plans of the employee and their aims and aspirations. It could be that an older employee working in a manual role would like the opportunity to move to an administrative role and they possess the skills required but are not utilised in their current role. This could lead to a discussion about the potential for a phased adjustment of their hours or duties leading up to retirement. But note any changes need to be agreed – including a change to Terms and Conditions of employment,” she said.

She stated it was important to have discussions around where the employee saw themselves in the next few years and how they viewed their contribution to the business. Expectations should be agreed and ACAS advise that future objectives and aims, should be SMART: Specific, Measurable, Achievable, Realistic and Timebound.

“You can use these meetings to inform employees about the future plans of the business and how these will impact on them. Ask the employee what their own aims and aspirations might be. This is a good way to ensure that the employee’s skills and abilities are matched correctly within the business and to your future plans.”

She says it is important to avoid throwaway comments and discriminatory questions. You cannot ask a 25-year-old if she plans to start a family and you cannot ask a 60-year-old when they plan to retire.

These meetings can be as frequent as you like and form part of the performance review or appraisal. It is good practice to record the discussion and provide a copy of the record of the discussion as you would with a performance review.

Putting a proper policy in place

If a business decides on having no fixed retirement age, it is a good idea to have a policy in place confirming this. You should state that there will be no assumptions that they want to retire just because they are approaching a certain age and that the employer will not make any discriminatory comments suggesting they should leave due to age. This is a good basis for defending any potential discrimination claim and it also covers the procedure should employees wish to retire.

Dismissing an Older Employee

If there are any concerns about an older employee’s performance at work – such as poor time-keeping or unacceptable behaviour, this should be dealt with in the same way as any other employee. You must still follow a fair and appropriate procedure.

“A workplace discussion is a good way to identify any employee with below-par performance or training needs. Failure to address issues in older workers in the expectation that they will be leaving soon – or that it would be undignified – could potentially be seen as discriminatory towards younger workers.”

Of course, in many uniformed service jobs, such as armed forces, police and the fire and rescue services, where there is physically arduous work, there is an expectation to retire before the default retirement age. This is still under review. Adelle Morris notes that partners in a law firm are not covered by the default retirement age regulations!