Human Resources

FAQs For Managers  Appendix 2  

Working Without the Default Retirement Age

Managing Without a Fixed Retirement Date

Q1 Does abolition of fixed retirement ages mean employees can go on working for ever?

A1 No, although managers should recognise that in some jobs people can carry on a lot longer than they might have been allowed to do previously. Try to value your older employees, and not think that working longer will be a negative thing. Most people will continue to see retirement as natural and will plan for it, albeit at a time more convenient than a set arbitrary date.

Workplace Discussions

Q2 Do I have to have a retirement discussion with my employees?

A2 No, there is no requirement to talk to employees about their future plans but you may find it helpful to do so for your own organisational and succession planning purposes.

Q3 What can I say to an older employee at a meeting to discuss their future plans?

A3 It is best if you start any discussion in a general way. Perhaps asking the employee what their future plans are or how they see themselves developing in the School or Professional Service Department over the next year or so. Any direct questions such as ‘are you planning to retire in the near future’ or ‘you seem to have been slowing down of late, have you thought about retirement’ are best avoided. Once an employee has indicated that they do wish to retire there is no problem in talking to them about the date for their retirement and any adjustments they may wish to make to their working arrangements or hours in the lead up to retirement.

Q4 If I discuss retirement with an older worker can I leave myself open to a claim of age discrimination?

A4 Not if properly handled. It is reasonable for a manager to understand an employee’s future aims and aspirations. The important thing is not to single out older workers. That is why you should have this discussion with all your employees about their plans as part of an annual progress and development review meeting or workplace discussion.

Q5 Can I protect myself by getting an employee to sign a contractual agreement that they will retire at a certain date?

A5 There is nothing to stop you from coming to a contractual agreement with an employee about their future retirement date, but it should be on the basis of a joint agreement. Discuss this with your Human Resources Manager.

Q6 What can I do if an employee had indicated that they will retire on a certain date but then change their mind?

A6 If an employee has given formal notice to leave, you are under no obligation to let them withdraw their notice. However if an employee tells you during a discussion that they are planning on retiring, they may change their minds before formal notice is given. Where an employee decides not to retire and no notice has been given, the first thing to do is to discuss with them their reason for not retiring. This can help to establish whether there is any issue that you, as a manager, might be able to help them overcome thus allowing them to retire on the due date or shortly thereafter. Ultimately however, if they decide that they do not wish to retire, for whatever reason, then you cannot force them to retire. Discuss this with your Human Resources Manager.

Managing Performance

Q7 An employee is not performing satisfactorily. I was planning to use the DRA so that they left at the normal retirement age of 65. I can’t do this now that the law has changed. What can I do?

A7 You may use one of the reasons for fair dismissal. However, a workplace discussion can help you better understand the employee’s intentions regarding their retirement. If they intend to retire then you can allow this to happen but remember an employee can change their mind. Where an employee is performing poorly and their performance cannot be improved then this should be dealt with in the same way as any other employee. Your Human Resources Manager can advise you on these issues.

Q8 How can we deal with older employees who are performing below acceptable standards?

A8 How do you deal with any employees who are operating below acceptable standards? There is no reason to think that older employees need to be treated differently. You should certainly find out the causes of any problems and only when all else fails should you reach for the capability procedure.

Q9 Can I make adjustments to working conditions for an older person to facilitate their working longer?

A9 The duty not to discriminate on grounds of age does not mean that everyone should always be treated identically regardless of any incapacity or limitation. Older people, in common with others (parents of small children, carers, etc), may have particular needs which should be taken into account if they are to be helped to remain in work. One problem is that older workers may not wish to ask for special treatment. You should encourage the low key adoption of changes that facilitate working longer. It is worth remembering that anyone at any age can acquire a disability and, where this happens, you are under a duty to make reasonable adjustments to facilitate their remaining in the workforce or to support their ability to do the job.

Q10 How can we deal with the performance management of older employees?

A10 Employees who fall below acceptable standards should be reviewed regardless of age. You should follow procedures for dealing with competence, performance, redundancy or other such issues. If an older employee is dismissed on grounds of competency or conduct, this could be presented as an employment tribunal claim. It will be assessed in exactly the same way as other claims, unless there is evidence of age discrimination.

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