When the statutory retirement procedure was fully abolished in 2012, employers could have been forgiven for thinking that they were ‘stuck’ with their older employees who they would, had the legislation not changed, have been able to dismiss fairly easily simply for reaching the age of 65.
Age does not always have to be a factor in an employee’s ability to do a job. Misconceptions are common that a young employee does not have the maturity to take on a responsible role or that an older employee does not have the agility, physically or mentally, to take on a role.
Dealing with older workers can be quite a sensitive subject but essentially, the key is to treat them in the same way as other members of your workforce. If their behaviour is falling below what you normally require from your staff, then address them in the normal way. Their age does not make them untouchable, and it is certainly not the case that you cannot dismiss an older worker now that the retirement procedure has been abolished. However, dismissal will only be fair if it falls into one of the other potentially fair reasons for dismissal, e.g. capability or conduct etc.
Underperformance because of an inability to do the job due to health reasons is, arguably, an employer’s most frequent concern about older employees. Employers are entitled to expect certain standards of performance and any employee, young or old, should be subject to these.
Consistency in an employer’s actions is a key element in a tribunal’s reasoning over whether an employer acted reasonably or not in relation to their treatment of a particular employee. Any anomalies in treatment beg questions to be asked and employers must then be able to explain the difference in treatment.
If there are problems with an older employee’s performance, action is required. Informal discussions may bring about an improvement – if not, then a formal procedure may be appropriate. Consistent failure to improve may result in dismissal. The decision to dismiss should take into consideration all mitigation, as it would with all employees regardless of age.
Employers should not be afraid to raise the topic of the future with an older employee, as part of an appraisal system if this is a question that you would ask all other employees. Training and development opportunities should be made available to older employees as they are to other staff members.
Age is a protected characteristic so it is important that employers do not discriminate, intentionally or otherwise against employees because of their age.
For further clarification and assistance on the issue then please contact our Advice Service on 0844 892 2772.