Paul Oakes, Manager of the Advisory Services Team, looks at the issue of retirement.
Knowing that there is no default retirement age has meant that some employers have been worried about how they can raise the issue with staff without raising the spectre of age discrimination.
Our advice is that, yes, you may raise the issue, but do be careful about how you do this.
It would be wise for employers to avoid direct questions such as ‘When are you thinking of retiring?’
The safest thing to ask a general question, such as ‘What are your future work plans?’ Ask it during an appraisal meeting and ask all staff the same question. This lessens the risk of the employer appearing to apply pressure on a particular staff member to retire.
If an employee freely replies that they are thinking about options such as fully or partially retiring, then you and they may go on to discuss that.
You may also provide employees with information to enable them to fully consider and plan for their future.
The Employment Equality (Age) Regulations (Northern Ireland) 2006 make it unlawful for employers, without lawful justification, to discriminate against their employees on the grounds of age.
Age discrimination may occur in a number of ways and includes treating a person less favourably than others because of their age.
It would be unlawful for an employer to forcibly retire an employee because they have reached the State Pension Age, or any other age, unless the decision can be lawfully justified, such as where there is a statutory mandatory retirement age for the work in question.
It is also likely to be unlawful to put pressure on an employee to retire because they are approaching, or because they have reached, a certain age, or where they have changed their mind about retiring after previously indicating that they were considering doing so, but where they have not yet given formal notice of leaving.
You should ensure that neither staff nor managers suggest that an employee should retire by making derogatory age-related comments such as ‘this is a young man’s game’ or suggest that the employee is too old for their current role and should consider reducing their hours or moving to a different job.
You should be aware that by making unilateral, unfair and unjustified decisions to remove some of an older employee’s work duties, to downgrade their status, change their hours of work or withhold opportunities for training, career development or to earn overtime and other benefits may make you vulnerable to a claim of age discrimination.
So, what can an employer do to make discussions about employees’ future plans easier?
You can create an environment that enables all employees, without fear of suffering ridicule or penalty, to comfortably discuss, or if they wish, not to discuss, their future work plans.
Here are three things you can do to help create that environment:
- You can ensure that you have a policy that makes it clear that age discrimination of the kinds noted above, is not acceptable from any member of staff, even as ‘banter’, and will not be tolerated. Ensure that all members of staff are made aware of this.
- During staff performance appraisal meetings, ensure that all employees are asked the same general question, such as ‘what are your future work plans?’ Ensure that appraisers know how to respond appropriately when an employee answers that they are considering options such as fully or partially retiring.
- Develop a flexible working policy and procedure. This should declare that you are committed to providing flexible working arrangements and fair and non-discriminatory treatment to those employees who use them, or wish to use them. It should set out your procedure for considering employees’ requests for flexible working arrangements and for implementing the decisions that you make. The procedure should also meet the minimum statutory requirements required by Part IXA, Employment Rights (NI) Order 1996 and its associated regulations. You need to inform all employees about the flexible working policy, and any options it includes around partial retirement.
Partial retirement is a flexible working arrangement under which an employee on reaching a specified minimum age is permitted by the rules of their occupational pension scheme to draw their pension early whilst continuing to work in a reshaped job, usually by remaining in their current post, but by reducing their hours of work.
Given that the rules of the pension scheme will restrict this opportunity to employees of a certain minimum age, such as 50 or 55 years, the option is related to the employee’s age. However, so long as the restriction conforms to the conditions laid down in certain exceptions permitted by the Age Regulation, the restriction is likely to be lawful. That makes it lawful for employers to discuss the option with employees who are interested in taking up the opportunity.
Employers can contact the Equality Commission's Advice and Compliance team for free confidential advice by emailing email@example.com or by phoning 028 90 500 600.
Posted on 20 Dec 2019 by