Too old for work?

30 Mar
by Donna Obstfeld, posted in Blog, Discrimination, gender   |  No Comments

I am absolutely useless at guessing a persons age.

Whether they are a child, a young adult, a mature adult or an octogenarian, I am just one of those people who can’t tell how old a person is.

I was once told that we needed to organise a gift for a fellow member of an organisation for his 100th birthday.

 “100, are you sure? Can we check that with someone? There is no way he is 100, I had him down for mid to late 70s!” Chess

This little old man was absolutely incredible. He loved chess and still taught it in schools and clubs. On tournament days, he loved nothing more than walking up and down the ranks of players, assessing their positions and providing feedback to them after the game. He would be on his feet from 9 am – 5 pm with a short break for lunch.

100? How?!

With the abolition of the default retirement age (DRA) in April 2011, business owners are increasingly struggling with effectively managing older workers.

The risk of an employment tribunal (ET) case against them for age discrimination looms large over the heads of many employers who are too scared to have a conversation about:

  • Poor performance
  • The employee no longer able to cope
  • The number of mistakes being made
  • The excessive time taken to complete simple tasks.

We are increasingly being asked to help manage older workers out of the business, but in many cases the older worker has been with the business for 20+ years, is part of the furniture and ‘as good as family’.

One client had a 75-year-old caretaker who still insisted climbing ladders to change lightbulbs and cycling home in the dark after locking up the hall following council meetings.

Another client has tried to have a conversation with a member of staff who is making far too many mistakes, only to be told that they will have to carry him out dead as he has no savings, this is his only income and he has no intention of retiring…. ever!

And I had to persuade my own grandma at 80+ to retire as her colleagues were having to redo all her work due to the number of mistakes she was making. How do you tell someone who had run her own businesses, been a highly efficient secretary / PA and had in her latter years been working for a family friend who had known her since he was 5 years old, that she could no longer do the job for which she was being paid?

I could go on.

The harsh reality is that with no DRA, if you want to go belt and braces to avoid the risk of an ET, you have to performance manage the older worker out and that means disciplinary and ultimately dismissal.

For most of our clients this is the least preferred option. They have respect for these workers, they like these employees, in many cases they have learnt a lot from these employees and yet ……..

There is no effective, watertight alternative.

70 womanA BBC article this week disclosed the statistic that the number of women retiring in their 70s has doubled in the last 4 years, from 5.6% to 11.3%. For men the number retiring in their 70’s is 15.6%.

There are lots of reasons for the increase including people living healthier for longer, pensions not being sufficient to support longer lives and people wanting to ‘have a purpose’ for longer.

While there are many advantages for business owners such as an experienced and committed workforce, the disadvantages are beginning to mount up.

Not only are some older workers no longer able to cope, but deteriorating health of themselves or their partners begin to lead to increased absences.  There is also a lack of vacancies for younger workers to join the business and progression is often blocked resulting in people leaving as more senior positions are filled with older workers.

When the older workers do leave, there is then a skills gap in the business as experienced people have left to progress their careers elsewhere.

So what are the options?

  • We have already mentioned performance management and capability disciplinaries leading to dismissals.
  • Redundancy is another option, but with an older worker who has been with the business for 20+ years, this can be expensive.
  • Another way to have a discussion with an older worker about their retirement plans is to have a without prejudice, protected conversation. If you go down this route, it will probably – although not always – result in a settlement agreement and a payment equal to or in excess of redundancy.
  • An alternative might be through a medical process. You would need to have a conversation with the employee and get permission to write to their GP. You would then hopefully receive a report from the GP that supported your concerns about the employee in the workplace. However, a GP is unlikely to tell the employee to retire and may make suggestions such as cutting down on hours or changing to lighter duties.

 

A great time to start a discussion about retirement might be as part of a goals and aspirations discussion as part of the appraisal process.

Asking all employees on an annual basis where they see themselves in 1, 3 and 5 years time can be very powerful. It enables you to support growth of your up and coming talent and it can facilitate a conversation about retirement with your older workers.

As a business owner, being able to gain an insight into the heads of your employees, understand what drives them and what you need to do to develop (or exit) staff is essential for the long-term health of your business.

As with many things in HR, there is no single golden solution, there is no ‘one size fits all’ approach. The route that you choose to go down will depend on you, your business culture, the employee concerned, your relationship with them and in some cases, your approach to risk.

There is no age-related need for an employee to retire; you can’t make them retire and any botched attempt to do so has the potential to end at the Employment Tribunal.

Extreme care should be taken and expert support sought at the earliest stages, before a friendly conversation is used against you.

Is this an issue that’s affecting your business at the moment?  If you’d benefit from a brief telephone call about it, give us a call now on 01923 504100 or hit reply and let us have your thoughts.

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