Avoid the 'R' word if discussing future plans with older staff

Out-Law News | 20 Jan 2022 | 10:27 am |

Sue Gilchrist tells HRNews about the age discrimination risk of raising the subject of retirement with older employees
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  • Transcript

    Asking an older employee if they would like to retire is risky even if the comments are ‘well-meaning’. It can lead to claims of age discrimination and, if the employee resigns, constructive unfair dismissal.

    This is in the news after a couple of recent tribunal decisions have been picked up by the press. Last week People Management reported on the case of a supermarket worker with dementia who was discriminated against after her employer, Asda, suggested she retire. She succeeded with various claims including age discrimination and unfair dismissal. Before Christmas we saw another case reported by a number of national newspapers where a civil servant won his age discrimination claim against the MoD when he was asked about his retirement plans.

    In the supermarket case, there were issues around the health of 73 year old Joan Hutchinson and in the course of meetings to discuss her work and attendance the claimant raised a grievance, unhappy at the way it was being handled. On a number of occasions the subject of retirement was raised by one of her managers. The tribunal concluded the comments about retirement ‘may have been said in a well-meaning way’ but ‘it made the claimant feel as though she was being pushed out of the business, or that her employer felt she was too old to be there.’

    In the MoD case, the Claimant was Ian Tapping, a civil servant in his 60s. He also had health problems – he’d been diagnosed with fibromyalgia, which causes extreme tiredness which was being managed. Tapping raised a grievance around how that particular issue was being handled and, importantly, at the time, he was worried he was going to lose his job. During a meeting with HR his plans for retirement were raised with him. The MoD argued this was necessary to effectively manage staff and plan for hiring new employees when workers leave. However, the judge ruled it was ‘unreasonable’ to ask him about his retirement plans when he had shown no indication of wanting to leave his job and was clearly worried about his job security.

    So clearly this is a tricky issue and whilst it’s easy to see how the subject of retirement might be raised in a meeting, as these cases illustrate, it can leave the employer in hot water. So let’s consider this. Sue Gilchrist has been looking in particular at the Tapping case – a judgement that runs to over 100 pages – and she joined me by video-link from Glasgow to discuss it. I started by asking Sue if she thinks this case changes the advice we have been giving on this issue:

    Sue Gilchrist: “I don't see that it really changes the position around that Joe, it’s more sort of reinforces good practice around it. We haven't had a compulsory retirement age since 2012 and since that time it's actually quite difficult for most employers to force retirement at a specific age. So when that compulsory retirement age was removed good practice was suggested by the likes of Acas etcetera around how employers would hold retirement discussions. This case is a recent example of that, where the employer fell foul of holding appropriate discussions around succession planning, and I think there are learnings from it, but it doesn't dramatically change the position for us.”

    Joe Glavina: “The question of retirement was in the context of asking Mr Tapping to consider all of his options as a means of seeking some form of resolution for him in relation to his grievances and the situation generally. I can imagine plenty of managers thinking that approach of ‘putting everything on the table’ is a fair and sensible one?”

    Sue Gilchrist: “Yes, I agree. I can see a manager thinking, well, I'm just being transparent, we're trying to resolve a situation, let's just, as you say, put everything on the table. But the issue is that the employer was seeking to resolve what was effectively an employee relations issue - in Mr Tapping’s case that were multiple grievances - by edging the employee toward retirement is potentially discriminatory. It's an entirely different situation if you're having fairly routine succession planning or career discussions with employees, but it's different to say to an employee who happens to be approaching, or past, the state retirement age, well, actually, have you thought about retirement as an option because a fair process to manage an employee in terms of performance, or disciplinary, if that were an issue, which it wasn't here, is different from edging an employee toward retirement just to kind of get them out of the business and resolve the issue for the employer.”

    Joe Glavina: “What about holding discussions for succession planning purposes, Sue? If that’s the issue an employer is wanting to explore, and they are sitting in front on an older employee, retirement will be a word on the tip of the manager’s tongue perhaps?”

    Sue Gilchrist: “Yes, and I think it's a pretty standard assumption, isn't it, as someone approaches the state retirement age, or even before that, then people around the might start to think awareness well when is Bob or Gill going to retire, I wonder if we should ask them about that, but I guess I would push back against that slightly because it's not just employees of a certain age that employers need to know what their career aspirations are, it’s every employee. You might have a top employee who's 30, you will want to know what their career plans and aspirations are, just as you do someone who's nearing state retirement age, or maybe even past it. So I would suggest that the most appropriate way of dealing with these discussions is to have a standard approach, probably in annual reviews or appraisals, where you discuss with all employees, regardless of age, what actually are you aiming to be doing in a few years’ time short, medium, long term? What are your career aspirations and why use the word retirement which will get some people's hackles up because it just infers that this is related to age. So it's a kind of unnecessary risk that the employer is taking by using the ‘R word’ in that way. I just don't see it as necessary and I think there are other ways, more equitable ways, of going around about the same sort of question and planning.”

    Joe Glavina: “The stakes are high in these cases, Sue, but the issue is a tricky one, clearly. So do you have a message to HR?

    Sue Gilchrist: “I mean, you're right, absolutely, discrimination awards can be unlimited, although of course that's most unusual in terms of the average awards we see at tribunal, but training for managers on this, as we've just heard, difficult conversations of other types but, you know, it's about that sort of relationship that managers have with employees, regular one to ones, appraisals and training on all of these issues is important and can help get the best out of the workforce and also make the manager more comfortable with having those discussions because you can see an individual manager thinking, oh, I don't know quite how to raise that, or whether I should raise that, and you know, one manager might think, right, I'm going to go to HR and be proactive and ask about this whereas another might, you know, slightly put their foot in it and leave the employer at risk of a discrimination claim where that's really unnecessarily.”

    Sue mentioned that Acas has published guidance for employers when it comes to holding discussions about an employee’s future plans. So they confirm an employer can ask an employee, no matter what their age, about their future plans but they say that is best done during an employee’s appraisal. So as Sue says, context is everything in these cases. We have put a link to that guidance in the transcript of this programme.

    LINKS
    - Link to judgement: Tapping v MoD
    - Link to Acas guidance on retirement discussions