Age Discrimination Trilogy – Part 3

Workplace Discussions: are they discriminatory?

In the final part of our three part series (in which we review some of the trickier issues thrown up by the abolition of the default retirement age), we look at potentially sensitive issues arising from workplace discussions - which ACAS encourages - concerning retirement.

A recent survey of employers' attitudes to the abolition of the statutory retirement procedure has returned some interesting results:

• Over 46% of employers expressed that phasing out of the default retirement age will have a negative impact on their business;
• Nearly 50% of the employers indicated they would now wait for the employee to raise the subject of retirement before discussing it with them;
• Only 24% of employers had given line managers any form of additional training on retirement and dealing with an aging workforce.

So what should employers be doing?

There is no reason why an employer cannot, as part of its strategic management and planning of its workforce, engage with employees to ascertain their future plans and discuss retirement. Whilst most employers will no longer have a compulsory retirement age, many employees will still wish to voluntarily retire or think about alternative or flexible work arrangements towards the end of their career.

There are a number of ways an employer can do this, including the approach endorsed by ACAS, such as engaging with the whole workforce as part of formal appraisals or workplace forums.

The key is that employers would be well advised not to simply have "workplace discussions" with older workers! What constitutes an 'older worker' after all? Would an older worker take offence or believe they are being pressured to leave? The risk is that workplace discussions limited to older workers may themselves lead to claims of discrimination.

What can I ask?

This will depend on the approach you adopt. If your discussions are part of a general appraisal system it would be entirely appropriate for you to ask, whatever the age of the employee, what the individual's future aims and aspirations are. This enables an employer to discuss its future work requirements and how these will impact on the employee.

Alternatively, employers could choose a more focused approach, for instance a short questionnaire or discussion for the over sixties, which could ask in a more direct manner what their intentions are, for the purposes of workforce planning. This content could include whether they wish to retire or remain in work and, if the latter, whether they wish the employer to consider any changes to their duties or contract. It is arguable that this type of enquiry could be likened to asking a woman on maternity leave if, when she returns to work, she would like to work more flexibly, which should be regarded positively and would surely not constitute sex discrimination. Similarly, asking an employee in their sixties their future work plans should not constitute age discrimination, especially if it is done for all such employees in a standard way and it may in any case be justified for workforce planning reasons, especially as workforces get older.

Click on the links below to read Part 1 and Part 2 of this trilogy.

Part 2: I want to retire but will I be a "good leaver"

Part 1: Retirement & Insured benefits: key facts for employers

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.