Many of us dream of retiring; finding a place in the sun, taking walks in the countryside, regular rounds of golf. But as much people relish (or sometimes fear) retirement and often openly count down the days, months or years, as employers, we must remember that the ‘R’ word is off limits.
Why discrimination is an issue
When the Equality Act 2010 came about, age discrimination became illegal for the first time in the UK. One of the changes this brought with it was the end of automatic retirement, even where a retirement age is set down in employment contracts, they can no longer be used. This can make things tricky for employers and employees alike. 
To retire, employees must resign from their job and then apply to their pension provider for their pension.
And employers are obliged to treat all employees the same, regardless of their age. This means the same access to training, the same benefits and the same opportunities. It can be very tempting when an older employee is experiencing ill-health or is openly talking about their post-retirement plans, to want to ask them about their retirement. But to do so could put you at risk of a claim of age discrimination and possibly disability discrimination depending on the health issue.
Recent cases
Asda have recently lost a claim of age and disability discrimination for this exact reason. When an employee over the age of 70 began to show signs of dementia, her managers were understandably concerned and tried to offer her support. The tribunal noted that they did many of the right things, checked on her and offered occupational health support, and that their actions came from a place of concern and care. However, they also frequently asked if she had thought about retiring. The tribunal found that their questions constituted to harassment on the grounds of age and their failure to makes reasonable adjustments to processes and procedures in the workplace constituted disability discrimination.
How to manage age-related issues
So how should we be managing older workers where performance is below expectations? How can we deal with age-related illnesses?
The simple answer is the same as you would with any other health condition. The most important rule is to follow your usual policies and processes. If any employee is having difficulty at work due a health issue, whether physical or mental, you should refer them to your occupational health advisors and where necessary and reasonable, make adjustments in the workplace to accommodate their needs. You might want to get support from Access to Work, a government scheme designed to help people to get or stay in work if they have a health condition or disability. Alternatively, there are dedicated charities who offer more specific support, such as Thomas Pocklington Trust for sight loss, with excellent employer resources available.
When it comes to performance-related matters these also need to be dealt with using your normal performance management process. The issues must be clearly explained, an
It is a natural human instinct to want to care for those around us, and to offer as much dignity and compassion as we can in the workplace. The use of formal processes can feel counter to this, but if followed properly and with care we can still offer the compassion and dignity we want to give without discriminating.
And remember, never use the ‘R’ word!
For a chat with one of our team about any of the issues raised in this article, please get in touch today.
Author – Jenny Ryder O’Regan