I was recently asked to give a presentation to a group of employers in the care sector about the issues involved in dealing with workers over 65. There was a lot of interest from the audience, so I thought it would be helpful to do an article about it, as the issues apply to all employers and not just those involved in social care.
Since the default retirement age was abolished in 2011 it is rare for most employers to be able to rely on compulsory retirement. Employees can choose when they retire, which means that we are seeing an increase in the number of staff over 65. However, many employers wondering where they stand as staff get older and make no mention of when they might plan on giving up work.
There are a number of issues which are relevant when dealing with older workers.
The law protects workers against discrimination on the grounds of their age. This applies on the basis of someone being treated less favourably either because they are ‘too old’ or ‘too young’. It also protects against harassment on the grounds of age.
However, as far as both direct and indirect age discrimination are concerned, there is a defence of justification – i.e. where the employer’s actions are a proportionate means of achieving a legitimate aim.
This defence means that there may be times where you could justify treating older workers less favourably. For example, if a 64 year old employee applied for you to fund a 4 year training course, you may be able to argue that it is reasonable for you to fund a younger candidate as funding the older employee would mean you would be much less likely to get a sufficient return on your investment. This can be a tricky area so it is a good idea to take advice.
Many employers who offer benefits such as medical insurance or life cover find that it can become prohibitively expensive to offer such cover to over 65s. Helpfully there is a specific exemption from the age discrimination legislation dealing with this – but this will only apply if the benefit ceases at 65, and not later. Our previous article on this topic can be found here.
As we get older, we become more likely to suffer from health problems. Those health problems may meet the definition of disability in the Equality Act 2010, i.e. they may amount to a physical or mental impairment which has a substantial long term adverse impact on normal day to day activities. If that definition is met, then the employer is under a statutory duty to make reasonable adjustments.
Although ill health problems do tend to increase with age, it is important that employers manage ill health issues in older workers in the same way as they would with younger workers. For example, if any worker is struggling with some of the physical aspects of their role, then it is best to seek medical advice (with the employee’s consent) regarding their fitness for the role and whether any adjustments could be considered. Ultimately if someone is not fit for their role and there are no reasonable adjustments or redeployment available then there are fair grounds for dismissal.
This is one of the trickier areas to deal with as although it is very important not to assume that an older worker will necessarily have a decline in performance, in practice it is something that many of our clients have experienced. Whereas in the past employers may have been prepared to sweep issues under the carpet until the person left at 65, that is of course no longer an option.
The best approach is to treat instances of poor performance as you would for an employee of any age. Sometimes this can be difficult, but we have seen many instances where issues have been left to fester and it results in greater problems.
As I explained in my article ‘Is retirement a dirty word?’ employers are often unsure as to how much they can ask their staff about their retirement plans. Retirement is really about resignation now, and as such, employers sometimes find they do not get as much notice as they would ideally like in order to put proper succession plans in place. The best way of managing this is to have open communication with staff at appraisals or supervision meetings about their plans and expectations for the future (not just about retirement) to try and ensure you are as prepared as you can be.
Now that anyone with 26 weeks’ service can make a flexible working request, it is becoming more common for employees to put in requests so that they can wind down towards retirement or so that they can care for grandchildren. It is important that requests are dealt with fairly, reasonably and consistently, but there is of course no obligation to agree to them. It is also becoming increasingly common for older workers to request flexible working so that they can help with care for their elderly relatives.
If you have a question about dealing with older workers, or if you would like advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.