Q&AJun 27 2019

Is a forced retirement age discriminatory?

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Is a forced retirement age discriminatory?

Q: Can I introduce a mandatory retirement age in my company to promote diversity and bring in fresh ideas?

A:Amid continued calls for employers to maintain a more diverse and inclusive workplace, the topic of mandatory retirement ages will occasionally crop up.

This can be a contentious practice given that age is a protected characteristic, and employers need to ensure they have the right legal basis in place before proceeding.

The main concern for employers when considering a mandatory, or forced, retirement age is the risk of age discrimination under the Equality Act 2010.

Altho ugh difficult, the law around age discrimination explains that you may be able to set a mandatory retirement age for specific roles, so long as this can be justified.

Unlike other forms of direct discrimination, direct age discrimination may be objectively justified.

To do so, you will need to prove that it is a proportionate means of achieving a legitimate business aim.

This means you will have to demonstrate that any mandatory retirement age meets your organisation’s business needs, as well as the wider needs of society.

To assess whether something is ‘proportionate’ or not, you will need to weigh up the negative impact forced retirement is likely to have on the individual against the importance of your aim.

Ask yourself: does this importance outweigh any discrimination and are there any alternative measures that would meet the aim while avoiding the discriminatory effects?

In relevant cases on the topic, a university and a legal practice were successful in justifying their respective retirement age policies.

When challenged in court, both employers were able to clearly rely on well-thought-out business justifications to show that a forced retirement age of 65 was reasonably necessary.

With the above in mind, it is worth considering whether a mandatory retirement age is appropriate for your organisation given the risk of discrimination.

While the goal of promoting diversity is admirable, keep in mind that there are other ways to go about this.

For example, you could review your current recruitment methods and see where underlying issues such as job advertisements or unconscious bias may be restricting diversification.

Be alert of any age-related stigma in your organisation that could influence decision-making and be sure to explain to staff that there will be no room for discriminatory behaviour.

It will be important that individuals in the company approaching the mandatory retirement age are still treated in a respectful and professional manner.

This means you should negotiate with them well in advance to discuss their retirement, including the specific date they will be departing the organisation and how they would like this process to be handled.

Peter Done is managing director of Peninsula