Prince Philip’s final engagement at the age of 96 highlights how many of us want to carry on working later in life. But what are the main legal issues around employing older workers? Michael Shroot discusses some of them.
All too often employers have contracts and staff handbooks that give the retirement age as 65 without any good reason. As we are living longer, we are also working longer and it is important for employers to address – and indeed embrace it.
By 2020 people over 50 are expected to represent 30 per cent of the working age population as the proportion of older workers continues to increase.
What is the default retirement age?
There is no standard default retirement age, which means employers are prevented from dismissing a worker on the grounds of retirement, or forcing employees to retire. Employers cannot set a retirement age unless they can justify it objectively. For example, this could relate to work that requires a high level of physical fitness.
Older workers are still able to retire voluntarily at a time they choose and draw any occupational pension they might be entitled to.
Employers are entitled to discuss the future of any employee, including older members of the workforce, as this affects training and skills. Clearly it is reasonable for these discussions, with all employees, to broach the question of what sort of role a worker expects to be doing in, say, three years’ time. However, the outcome of the meeting should be recorded and it is good practice to send a copy to the employee.
What forms does age discrimination take?
It is unlawful under the Equality Act 2010 to discriminate against employees, job seekers and trainees because of their age and there is no upper age limit on unfair dismissal and redundancy.
There are four main types of discrimination. Firstly, direct discrimination occurs when an employer refuses to offer a job to an older person because of his or her age. Secondly, indirect discrimination involves an employer’s policy, practice or procedure placing an older employee at a disadvantage.
The third type of discrimination is harassment. This constitutes unacceptable conduct by the employer, or the creation of an intimidating, hostile, degrading or humiliating environment for employees in relation to their age. Finally, victimisation is the unfair treatment of a member of staff as a result of him or her making a complaint about age discrimination.
What is ageism in recruitment?
The law says employers cannot include age limits in job advertisements and should avoid using language that implies a particular age group if preferable to another.
Employers are entitled to ask for an applicant’s date of birth, but this should be kept on a separate document to the application form and cannot be used to determine whether or not someone should be offered the job.
The increasing importance of flexible working
All employees have a right to ask for flexible working after 26 weeks with the employer. It is common for older members of staff to request flexible working, often due to looking after grandchildren or older family members.
Flexible working requests should be made in writing, giving the date of the application, the changes to working conditions the employee wants, and when he or she would like these changes to happen. The request should also address the effect the employee believes the proposed changes would have on the employer and how this effect could be practically accommodated. It is also important for the employee to state that the request is a statutory one.
Why professional advice should be taken
The technical nature of legal rights for older employees means the implications of any action by the employer should be carefully considered. Taking advice from a specialist employment lawyer is recommended in order to ensure you steer clear of the many pitfalls.
At WHN Solicitors, we have a team of employment solicitors who can guide employers through all aspects of older workers’ rights.
For further advice on workplace rights for older employees, call Michael Shroot on 0161 761 4611, or email him at michael.shroot@whnsolicitors.co.uk
