The Equality Act 2010 makes it unlawful to discriminate against employees because of their age. Since 2011, Employers are no longer able to force employees to retire or set a retirement age unless it can be objectively justified as, what the law terms, ‘a proportionate means of achieving a legitimate aim’. However, older workers can voluntarily retire at a time they choose and draw any occupational pension they are entitled to.
Direct discussions relating to retirement are best avoided. ACAS (Advisory, Conciliation and Arbitration Service) recommends an informal conversation around an employee’s plans for the short, medium or long-term future instead, although this should be handled carefully. Employers should ensure that their management teams are trained and equipped to deal with these types of sensitive conversations.
Once an employee has given formal notice that they wish to retire, the employer is not obliged to allow the employee to rescind their notice. If the employer does allow the employee to retract their notice, it may be advisable to have a conversation regarding the reasons they have now decided not to take retirement.
Employers may have concerns regarding an older employee’s performance. It is important to remember that older workers may have a wealth of experience that can be an asset to an organisation and recent studies have shown that older workers are half as likely to take a sick day in comparison to a younger worker.
Any issues relating to poor performance and capability of employees should be dealt with under the Company’s usual capability procedures. Employees should be given training where required and time to improve. The employer should also consider any protected characteristics that may be linked to poor performance such as a recognised disability.
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