Employing Older Workers

With an ageing population leading to a need for many people to work longer, coupled with the abolition of the compulsory retirement age, the average age of people leaving the workplace has increased steadily over the last two decades. In fact, the over 50s now make up over a third of the working population.

Here, Head of Employment Law at Banner Jones Solicitors, Katie Ash, discusses how employers can navigate any concerns or challenges relating to an older workforce.

Some employers will no doubt be concerned that an older workforce will bring with it more challenges in terms of performance management, capability and health issues. However, it’s important to start by pointing out that Government research confirms that older workers are just as productive as younger workers; at the very least up to the age of 70.

In fact, according to said research, older workers take less short-term sickness absence, and tend to offset any loss of speed with better judgement because of their experience.

The main drive here is that the Government wants employers to avoid seeing older workers as a risk or liability, and instead to seize the opportunities they offer; particularly since there are concerns that too few skilled younger workers are entering the workplace to replace those leaving at the end of their careers, which will in turn lead to a skills shortage, reduced efficiency and ultimately poorer business performance.

But the practicalities aside, it’s also vitally important that business owners and decision makers are aware that stereotypical views of older workers could lead to claims of age discrimination given that age is a protected characteristic under the Equality Act 2010.

Instead, proactive management and discussion about future plans and aspirations should be the preferred approach, and the onus is on the companies to ensure that older workers can continue to the best of their ability.

These discussions should take place with workers of all ages, and can take place as frequently as needed, and they don’t need to be formal appraisal style meetings, and there is no reason not to talk to an employee about where they see themselves in the short, medium and longer term.

In the context of managing older workers, these discussions may include when the employee feels they may be ready to leave (the longer term), whether flexible working may be attractive to them (particularly if they are ‘phasing’ in to retirement) (the shorter term), what support they might need and whether they may be considering a change of role (the medium term).

Importantly, employers can’t ‘hold’ their employees to what is said in these discussions, but it will be a useful tool for understanding where the employee wants to be and how this may impact on the business.

Where there are genuine concerns about performance, capability or health, an employer should deal with these in exactly the same way as they would any other employee.

If an employee is performing poorly an employer should discuss this with them to establish the causes. Failure to address poor performance in older workers because, or in the expectation, that they will be leaving soon to draw their pension, or that it will be too undignified, could be discriminatory. An employer should also avoid falling into the stereotype that poor performance is more likely to be associated with older workers, particularly given research to the contrary.

Establishing the reasons for poor performance, setting improvement periods and agreeing what training and development would help the employee meet expectations are key to managing performance.

If the performance issues are caused by a health condition that is classed as a disability under the Equality Act 2010 then an employer will be under a duty to make reasonable adjustments to remove any barriers to the employee’s performance. This is no different to employing a younger employee with a disability.

The key message here is that communication between employees and employers at an early stage is crucial so that both parties can plan appropriately and maximise the opportunities available to them.