What do you do when someone is reaching what used to be referred to as ‘retirement age’?
Care needs to be taken when you are dealing with employees of a certain age; they should not be treated any differently or discriminated against just because of their age. Employers that compulsorily retire employees, or attempt to pressurise employees to retire, are at risk of direct age discrimination and unfair dismissal claims.
Companies in the UK are no longer able to specify a retirement age and therefore you cannot compulsorily retire an employee on reaching a particular age (unless a strict exemption applies which is explained below). Therefore, an employee can continue to work well into, their 70’s or 80’s if they are fit and well and able to carry out the role. Supermarkets for instance, like older workers as they are often more friendly, personable and arguably have a stronger work ethic than a lot of millennials.
Thus the circumstances in which employers can compulsorily retire employees are rare. An employer-justified retirement age will apply if the employer can objectively justify it as a proportionate means of achieving a legitimate aim. For example, to protect the health and safety of employees or the general public (this might be applied to pilots, emergency staff or air traffic controllers) or where a requisite level of fitness or agility is required to undertake the role.
Something else that may occur is that an employee may develop an illness or disability which prevents them from undertaking the role. In this instance early retirement on medical grounds may be sought by either party and will need to be backed up by an independent medical practitioner.
If you are unable to rely on the objective justification or medical grounds in order to retire someone, what should you do if you are employing someone of a certain age and they want to continue working but you have concerns regarding their performance or ability to undertake their role? Unfortunately, there is no easy way to have the conversation and even if someone has worked for you and been an amazing performer for 10 or 20 years, you now need to start having discussions whereby as the employer, you set out your expectations of the employee’s performance and demonstrate your concerns with the gap between your expectations and their delivery.
The key is do not treat someone differently just because they are of a certain age. Contracts and policies should reflect the fact that employees are not required to retire at a specific age. If an employee wishes to volunteer for retirement, he or she can do so at any time and this is a normal resignation process, but you should not compulsory retire any employee or put any pressure on the employee to take retirement.
Your usual company processes should be followed regarding an employee’s performance regardless of their age. Consider offering flexible working options to employees approaching voluntary retirement. Discussion and involvement with employees is essential, if they are involved in the process you are half way there.
This week’s blog was written by Brenda Miles, HR advisor. Brenda is often on the road, visiting clients and helping line managers with their front line HR issues.
