Office for National Statistics figures published this month show that our
workforce is most definitely ageing. In fact this year, in the period between
February and April, the number of people in employment in the UK who were over
65 broke the 1m mark for the first time.
The figures have revealed that of the 29.8m people now officially working in the
UK, 3.4% are early baby-boomers and of all over-65s living in the UK, almost
10% are working. And the trend is picking up pace.There are multiple reasons
for this change in working demographic: we’re living longer and are healthier
and fitter; investment returns are low reducing the bought value of pensions;
the cost of living is higher and people simply can’t afford to retire. But one
reason that is having a big impact is the abolition in 2011 of the Default
Retirement age (DRA).
Implemented in 2006 the DRA allowed employers to force their staff to retire at
65 and although staff could request to stay, employers were under no obligation
to comply. But fierce lobbying from organisations such as Age UK led the
government to reconsider and eventually scrap the legislation, accepting that
it was unfair and counterproductive.
Essentially businesses can only dismiss over-65s on the same grounds as their
younger colleagues: conduct, performance or redundancy.
However, the recently publicised UK Supreme Court case and subsequent Employment
Tribunal of Seldon vs Clarkson Wright & Jakes, in which lawyer Leslie
Seldon lost his six-year battle against being forced to retire at 65, has
potentially paved the way for more employers to enforce their own retirement
Although ‘retirement dismissal’ is considered unlawful direct age
discrimination, the court ruled that the business could enforce its retirement
policy on the grounds that it was "objectively justifiable" and was a
proportionate means of achieving a legitimate aim.
This has, unsurprisingly, given rise to a number of concerns for both employers
and their staff.
BPIF employment law solicitor Carole Banwell says that early indications in the
development of case law surrounding retirement policy suggest that only "social
policy" aims, staff retention and planning, and intergenerational fairness and
dignity, will make the grade.
She says: "Whether the retirement policy adopted by an firm is considered a
proportionate means will be very fact-specific and, to be accepted by the
courts and tribunals, will need to be underpinned by hard evidence that there
is no other, less-discriminatory way to achieve the aims."
The BPIF has experienced surprisingly few retirement claims from its members,
according to Banwell, with the key to avoiding them being effective, rather
than negative, and routine performance management.
BPIF chief executive Kathy Woodward says that an increasingly ageing workforce,
although offering plenty of opportunities, could indeed result in some negative
"Some will find their ability to consistently perform their roles to the
required level increasingly difficult, which could project both the employer
and employee into potential negative performance management processes," she
She advises businesses to think about how they can accommodate different working
patterns and "twinning arrangements" with less experienced workers to ease the
pressure on both the organisation and the employee.
But Woodward warns that if not managed correctly, businesses could face age
discrimination claims, poor perception from staff, reduced productivity and
increasing resources "sucked into individual performance management
One HR specialist in the print industry told PrintWeek that an emerging theme,
particularly among some smaller companies, was that people who had been
expected to retire simply haven’t.
"The main consequence sadly being that those who would have been ‘good leavers’
had they left at 65 have ended their careers as ‘bad leavers’ on performance
grounds, or we have had the fun and games of trying to get medical evidence to
support the company’s assertions that the individual is no longer fit to carry
out their duties."
But George Thompson, managing director of printing recruitment specialist
Harrison Scott Associates, says that employers are looking for more "positive
ways" to incentivise retirement such as ‘golden goodbyes’ and where that is not
possible he says he is seeing a lot more discussion taking place.
"In the printing industry, managing directors are normally very hands-on and
know their staff extremely well. They are often very entrepreneurial and will
tend to be more flexible and open with their employees.
"We can’t deny that some employers will implement minimum standards of
performance to effectively manage people out, but I really think there are more
people talking about a fair means of doing things than anything else," he says.
Thompson also feels that it is unlikely, just because the DRA no longer applies,
that there will suddenly be a glut of over-65s demanding to stay in their jobs.
Forum of Private Business policy advisor Rob Downes agrees.
"The more physically demanding a job, which applies to the printing industry,
the sooner a person will be unable to manage. It’s quite likely that an elderly
employee who finds a job is becoming increasingly difficult would not want to
carry on," he says.
Downes says that if a person is fit and capable, of course they should be
allowed to carry on, not least because of the wealth of experience they can
share, but that to prevent coming unstuck or "landing themselves in a tribunal"
employers need to be armed.
"Our advice would be to have proper HR systems in place, and if in doubt, seek
legal advice. New pieces of legislation like this show why companies have to be
on the ball. Mistakes can be costly and with the average tribunal cost at
around £8,500, prevention is always better than cure."
Employing older workers makes good business sense
Michelle Mitchell, charity director general, Age UK
Over the past 20 years, average retirement ages have been
steadily increasing. With state pension ages set to rise and a continued
squeeze on living standards, it’s reasonable to expect that this trend will
continue for the foreseeable future.
In short, more older workers are willing and able to continue.
Since the end of the Default Retirement Age in 2011 it’s illegal to force people
to retire unless it can be ‘objectively justified’ – and this will be
exceptional. Employers will have to look at different ways of managing their
workforce. And although this may be a challenge in the short-term, if done well
it can bring significant longer-term benefits for business.
If there’s one take-home message from several decade’s worth of medical research
into ageing, it’s that age cannot and should not be used as a proxy for ability
or capability. It’s therefore inherently unfair to stop everyone from working
beyond a particular age.
Last year’s judgement by the Supreme Court on the case of Leslie Seldon laid the
principles for future justification of direct age discrimination. It found that
assuming forced retirement is dignified "sounds suspiciously like
stereotyping", and that while it is still possible for employers to justify
this practice the test for proving such measures are "appropriate and
necessary" has been made harder to pass.
Employers should consider ‘reasonable adjustments’ to the workplace. BMW
recently demonstrated that by making some changes to a production line, for
example changing the lighting and providing chairs, while staffing it entirely
with older workers, productivity increased 7% in a year compared to a standard
All these lessons need to be taken on board by employers, particularly in
industries such as printing, and adopted in each and every workplace. It’s good
for older workers, good for skills, and very good for business