Q: With my workforce getting older, I would like to ensure that I am not breaching any laws concerning discrimination. What should I be aware of?
A: The government is currently championing the employment of older workers and, combined with increases to life expectancy, many employers are going to be faced with ageing workforces. It is essential that employers are not viewing this as a negative, but are, instead, celebrating the skills and talents of older workers and ensuring they are not treating these individuals less favourably because of their age.
Age is a protected characteristic under the Equality Act 2010. Employees cannot be treated less favourably by reason of age, and employers should not set in place any policies that, on the face of it, apply to all members of staff, but place older workers at a particular disadvantage.
Employers should review their internal policies and ways of making decisions to ensure this is not taking place. Areas of unconscious discrimination may be in awarding training opportunities, making promotion decisions and invitations to work events.
Offering company benefits, such as medical or life insurance, may become more expensive once the worker reaches a particular age. Removing the benefits is likely to be unlawful age discrimination. However, employers may find that the particular benefit itself withdraws the benefit when the employee attains a particular age. If this is the case, the employer should hold a meeting with the employee and explain that their benefit provision may change.
Employers can no longer dismiss someone on the grounds of retirement since the default retirement age was removed in 2011. Companies can set a compulsory retirement age, but this will be discriminatory unless it can be objectively justified. Previous cases have shown that this is difficult to do as it requires a very strong business need to require older workers to retire.
A reason which has been capable of objectively justifying a retirement age is the need to attract, and keep, recently qualified professionals, but this will not apply to every case. The chosen retirement age also needs to be carefully selected as longer life expectancies, and the continuing rise of the state pension age, may mean that 65 is no longer the accepted age for retirement.
There is nothing stopping an employer from speaking to their older employees to ask them about their plans. Evidently, questions such as “are you going to retire soon?” would provide evidence of a discriminatory attitude, but using an annual appraisal or review to ask them what their future plans are will not breach any laws.
If the employee themselves mentions retirement then employers can ask whether they can make any arrangements to help with their plans. Keeping notes of this meeting, and any questions asked, will be important to show that discrimination did not occur.
Peter Done is managing director of law firm Peninsula
