Top tips on avoiding discrimination when managing older workers
Five years on from the abolition of the default retirement age, employers are still coming to terms with the practical challenges of managing older workers. Chris Cook of SA Law advises on how to deal with sensitive issues concerning older workers, such as planning ahead and addressing performance issues.
Following the abolition of the default retirement age back in April 2011, dismissals based on an employee’s age could amount to direct age discrimination. This change was certainly good news for the individual, however employers were faced with the uncertainty of when older employers may elect to prompt their retirement. This uncertainty impacts an organisation’s long-term business plans as to when employees will be leaving the organisation and when they will need to be replaced.
How and when employers can set a retirement age
In removing the default retirement age, the Government wanted no worker to be deprived of the opportunity to work simply because of their age. Although in most circumstances it will not be objectively justifiable for employers to apply their own retirement age instead, employers do have the opportunity to produce evidence to show that setting a retirement age in certain jobs within their organisation is justifiable. They would need to show:
- That they are trying to achieve a legitimate aim; and
- That setting a retirement age is a proportionate way of achieving that aim.
- Upholding health and safety standards. Employers would need to demonstrate that the risk relates to a specific activity and is at a high level.
- Enabling workforce planning. Employers would need to demonstrate that business aims cannot be properly achieved without advance information about future vacancies.
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