It is estimated that by 2020, a third of our workforce will be over the age of 50.

Despite this, there still seems to be considerable confusion amongst employers about how to manage older employees effectively and how to address retirement and performance issues.

Can you force an employee to retire?

Due to the abolition of the UK default retirement age of 65 in October 2011, employers are no longer allowed to compulsorily retire employees.

This means that the only way an employer can force an employee to retire is if they can “objectively justify” it. For example, an employer could potentially have an upper age limit on a job which requires extremely high levels of fitness. In most cases, however, it is very difficult for most employers to demonstrate they have a good business reason and that it is a proportionate way to achieve this legitimate aim.

If you do go ahead and force an employee to retire, this can be very costly as it can potentially give rise to a constructive dismissal or age discrimination claim.

Can I ask an employee when they will retire?

You may have an internal practice in place whereby 6 or 12 months before they reach the pensionable retirement age, you discuss with them what their future plans are. You can talk to them about their aims and ambitions and whether they see themselves in the same role in the next few years and if they had any plans to retire. This allows you to gather vital information for succession planning.

Can I have a retirement policy in place?

Yes. If you have a clear retirement policy in place, it should make it clear to employees that they can retire voluntarily when they reach their state or occupational pensionable retirement age.

What do I do if they are not performing well? 

All employers should have a robust and clear performance management procedure. If you notice that one of your employees is not performing to the required standard, you need to take action, regardless of their age. It is important to take a consistent approach as there is a risk that if one particular age group is performance managed that could amount to discriminatory conduct.

The employee’s line manager can talk to them to make them aware of the performance issue, identify the reasons for underperformance, and inform them of what the correct level of performance is and how they can improve. If this doesn’t work, formal procedures will need to be initiated.

Do I need to make specific workplace adjustments for older workers?

The law does not lay down any obligations on employers to make any workplace adjustments for older workers. However, if the employee suffers from a health issue and is considered “disabled” under the Equality Act, employers will need to make reasonable adjustments to the worker’s working practices, policies and procedures. This could include changing their equipment, doing things another way or making physical changes. A failure to do this could result in a disability discrimination claim.

The definition of “disability” under the Act is perhaps broader than you imagine. To be considered disabled, the employee must show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities.

Points to remember:

• Don’t make assumptions or base decisions on stereotypes or preconceived ideas. Just because someone is 50 plus doesn’t mean they can’t learn new software or technology!
• If you decide to refuse older employees training opportunities, deny them a promotion or simply dismiss them because of their age, this could be discriminatory. You would have to be able to objectively justify this.
• Be careful when writing job adverts. You may only write phrases such as “mature” in the advert if they are actual requirements for the job role.

If you would like to discuss this further or are facing a specific situation in your workplace, give your Employment Law Adviser a call for support and guidance.