Fifty shades of grey? Older workers could dominate in the workplace
Author: Paula Rome & Katy Meves
With an ageing population, the future is grey and organisations need to adapt to a changing economic and social landscape. We consider the legal framework for employers to help them avoid the pitfalls and reap the benefits of an older workforce.
In the next 10 years, there will be 700,000 fewer people aged 16 to 49 in the UK labour market but 3.7 million more people aged between 50 and state pension age.
Last year the Government appointed Ros Altmann CBE as its Older Workers' Business Champion. Dr Altmann believes that outdated and inaccurate perceptions are holding the over 50s back. A recent report suggests that the over 50s are less likely to get back into employment if they lose their jobs than younger individuals.
Undoubtedly, stereotypical ideas about older workers do persist but, many reports and studies highlight the positive aspects of an older workforce for employers including: preventing the loss of skills from the workforce, saving recruitment costs, benefiting from lower absence rates, greater flexibility, a strong work ethic and higher commitment levels to the employer's business.
Pitfalls for employers
Under equality and other legislation older workers enjoy significant legal protections. If an employer falls foul of these they could be face claims for potentially unlimited compensation. Traps to avoid include:
- Don't forget that age discrimination legislation protects both older and younger workers
- Discrimination is unlawful at every stage of the employment relationship from recruitment, throughout employment and at termination. This means that both job candidates and ex-employees are protected
- Older workers should be employed on the same terms as other workers. Providing less favourable benefits for example would be discriminatory. This is subject to some limited exceptions for length of service benefits and insurance products
- Some workplace policies which apply to all staff may particularly disadvantage older workers and this could found an indirect discrimination claim
- Regardless of an employer's motivation for ignoring poor performance - which may very well be kindly - older employees should be subject to the same appraisal system as everyone else. If their performance is wanting they should be offered support and training and actively managed. If a proper performance management system is in place and an older worker is still failing to come up to standard they should be able to be dismissed fairly for performance regardless of their age
- Employers may be concerned that older people are more likely to have health issues than younger workers. However, an employer is legally prevented from asking about a candidate's health, in most circumstances, until after they have made a formal offer of employment
- Older workers may be or become disabled within the meaning of the Equality Act 2010 and employers have a legal duty to make reasonable adjustments to help them overcome any disadvantage in the workplace caused by such disability
- Since April 2011 when the so-called 'default retirement age' of 65 was abolished the vast majority of employers can't force any employee to retire on grounds of age, it is for the individual to decide when (or if) they wish to retire
- Not everyone will find stereotypical comments or banter about age funny and these could form the basis of a harassment claim by an older employer! Diversity training for staff should cover what is and is not appropriate language in the workplace
- Older employees may have caring responsibilities for both elderly relatives and grandchildren or may just wish to work more flexibly as they age. Since 30 June 2014 all employees with 26 weeks' service may request to work flexibly. Employers need to ensure they consider all such requests reasonably, guided by the relevant Acas Code of Practice
The demographics suggest that the UK economy will need to rely more heavily on older workers in the future. Employers who recognise this early and ensure their organisations are fully aware of the legal issues will undoubtedly reduce risk and reap the benefits.
DWP employers' guide to employing older workers
ACAS Code of practice: handling in a reasonable manner requests to work flexibly
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.