Businesses: are you at risk from an age discrimination claim?

Monday 25 June 2012

Employment law specialist Jacqueline McCluskey gives some timely advice

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The UK’s default retirement age was scrapped last year, meaning staff no longer have to retire upon turning 65.

The new rules were phased in, with employers able to serve eligible staff with a retirement notice up until April last year. Employers could provide staff members with up to 12 months’ notice, and employees could then request a further extension, meaning some affected staff have only recently retired or are currently still employed and due to retire later this year.

However, it has since come to light that, because of a relatively minor technicality, employers who took advantage of the transition period and issued retirement notices to selected employees may be liable for age discrimination compensation claims. The problem was that some employers did not literally quote a paragraph in the regulations allowing employees to request to extend their employment. While most employers did advise staff of their rights, because many failed to quote the required paragraph, this could leave them vulnerable to age discrimination claims in the coming months. Looking to the future, without a set retirement age all employers will likely experience an increase in the number of older employees in their workforce. In some cases, there is a concern that addressing underperformance could become an issue. There are a number of performance management tools at an employer’s disposal which not only assist in supporting members of staff who may be struggling but, if implemented correctly, can also combine to represent a robust and impartial store of evidence against potential age discrimination claims.Job description I often see poor communication right at the outset of performance management as the line manager assumes the employee’s role consists of one thing when, in fact, it is something else. Once the line manager is clear what the employee actually does, or should be doing, it’s easier to set performance targets. If the role has changed since the employee began, the job description should be updated. A well maintained and accurate job description will also make clear to the employee exactly what is expected of them and lessen the grounds for an appeal should an employer have to dismiss them for underperformance.Appraisal Appraisal conversations should take place with all employees, regardless of age, and must set the same standards across the board. The same questions should also be asked of all staff.Training However, if underperformance has been identified as a serious cause for concern and results in dismissal, a previous failure to offer adequate training may present a legitimate argument for an age discrimination claim. To that end, all employees must be given the choice to attend refresher courses, particularly in areas where a previous appraisal has identified the need for further development.PIP At these meetings it should be made clear that the employee can be accompanied by a colleague or trade union representative. The agenda should be made available in advance of the meeting to provide adequate time to prepare. The PIP should identify acceptable targets which are agreed with the employee and can be used to track progress over a set period of time. Jacqueline McCluskey is an employment law partner at HBJ Gateley

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Businesses: are you at risk from an age discrimination claim?

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