October 10, 2011
An important change in the law has taken place concerning older workers. This was brought about largely as a result of the lobbying by Age UK which asked for older workers to carry on in employment beyond the age of 65. Government sources confirm that people are living longer and working longer, whilst fewer young people join the labour market. By the early 2020s, people aged between 50 and 64 will comprise almost a third of the work force. With skills shortages and changing labour markets, it makes sense to utilize all available skills and experience, regardless of a person’s age, and to encourage older workers to stay within a business.
Compulsory retirement
Until April 2011, there was a statutory procedure which, if correctly followed by the employer, would mean that an older employee could be forced into retirement, even where they were specifically asking to be allowed to carry on working. Potentially, the employee received no redundancy payment and could not bring a claim for age discrimination or unfair dismissal. Many employer groups, including the British Chamber of Commerce, the CBI and the EEF did not want this situation to change. Their opposition was based on views that it would become more administratively difficult to dismiss older workers and employers would be forced to discipline staff which would be undignified. It is clear that many employers chose not to deal with issues with their older workforce, whilst essentially waiting for their compulsory retirement age to come about.
A new dawn
However, from April 2011 older workers now need to be treated in the same way as all other staff. This has both advantages and disadvantages. Employees can now carry on working, potentially indefinitely. However, this will mean that if their performance deteriorates or there are frequent absences, then an employer will need to deal with these in the same way as it does for all other staff, on the basis of capability.
More certainty required?
In certain limited circumstances, it may still be possible for employers to set a compulsory retirement age. However, any fixed retirement age will be open to challenge on the basis that it is not justifiable. The majority of larger employers have stated that they have no intention to adopt this type of compulsory retirement age. As the law in this area is largely untested, employers contemplating this approach should take specific legal advice.
Or more flexibility?
A further, and potentially very interesting development, is that the Government has recently completed its Modern Workplace Consultation. This proposes that the right to request flexible working should be extended to all employees rather than limiting it to those with children under age 17. If granted, this would mean older workers could force their employers to consider reducing their hours to part-time work which would enable many more to carry on working for longer. This would create a better balance and achieve the government’s aim in a dignified and sustainable way.
If you require further information on this subject or any other aspect of employment law, please contact Debra Wetters, Solicitor at Spratt Endicott Solicitors on 01295 204122, email Debra at dwetters@se-law.co.uk.
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