Posted: Friday, 4 January 2019 @ 13:43
We live in somewhat interesting times with a rising elderly population, a difficult economy, but also organisations are increasingly having to grapple with what they perceive to be complex employment law in the area of managing elderly employees.
Recently the government repealed the default retirement age and two recent law cases have added more confusion.
Sadly, on occasions firms do have to go through redundancy or dismissal steps against elderly workers, but how do you go about doing it?
With employees ever willing to assert their legal rights, is it virtually impossible to do so without being sued?
Here are some principles to minimise that prospect.
1 Recognise that the law is complex - For example, recently the default retirement age was made unlawful as being discrimination on the grounds of age. However, in contrast to other forms of discrimination, it is possible to justify both direct and indirect age discrimination. Organisations can retain a default retirement age, or age discriminate in other ways, if they can show that the discrimination is "a proportionate means of achieving a legitimate aim."
2. Take advice. The new case law reinforces legal complexity. The Supreme Court has recently ruled that organisations can still justify direct age discrimination if there is a legitimate aim in the public interest, and the individual aims of the employer are chosen to be both appropriate and necessary. This will involve considering whether there are other, less discriminatory measures which could achieve the same aim. Sadly, the law is still complex and in my view will promote litigation. It is critical that you take advice.
3. For practical steps, look at your employees' employment contracts. Do they still contain a default retirement age? If so, can you objectively justify it by reference to a social policy aims of intergenerational fairness or dignity? Would an older age be a more proportionate legal aim? What do other organisations do in your line of work? Take a step back and look at the wider picture.
4. Speak to your workers. Have conversations with your employees of all ages about their future plans. These conversations can form part of the appraisal process and can enable you to establish the likelihood of a legal dispute arising. If things do start to go awry, at least you are prepared.
5. Consider mediation. In cases like this where the parties can’t agree and emotions start to come into play getting the parties around a table, facilitated by a skilled mediator can really help. In this instance the earlier the better. Mediation could have avoided significant costs and might have enabled the worker retain some personal dignity and the employer could have been seen in a much better light.. Mediation does tend to work and if things go wrong.
Justin Patten, Employment Mediator