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Age considerations in the workplace

Age-related capacity is very much at the forefront of global concern this week, due to a series of concerning public appearances from the world’s most powerful employee, US President, Joe Biden.


He appeared confused and sluggish, and it is not surprising that people are questioning whether he lacks the capacity to do the job. It is not discrimination to tell someone who lacks capacity that they lack capacity. However, the way in which you tell them and what you do about it, can be.


The new government has made clear its commitment to, in the Prime Minister’s words, “growth, growth, growth”. The question is: how can this be achieved? If Britain is aiming all out for growth, and it seems clear it is not intending to manage that growth via importing foreign nationals according to the Home Secretary Yvette Cooper’s interview last week, then one of the only ways to drive growth is to keep the existing UK population working for longer. 


Whilst the Labour plan to “get Britain working” rightly includes a “youth guarantee” with training and apprenticeship opportunities for 18-21-year-olds, it is to be hoped that this focus is expanded to include the other end of the career spectrum: older workers. 


Age discrimination and reasonable accommodations

According to a recent report by the Centre for Ageing Better, “by 2030, there will be an additional 1.2 million people aged 50-64 in the UK, but only another 500,000 people aged 15-29. The future of UK growth and productivity over the next Parliament depends on mobilising the 50+ workforce.”  


This week’s £3.2 million Employment Tribunal costs ruling in favour of a 58-year-old executive, Glenn Cowie,  described by his CEO as an “old fossil” illustrates that much work is still to be done in challenging perceptions of the over 55s in the workplace. 


Mr Cowie’s employer, a FTSE 250 firm, had an informal policy to hire candidates with a maximum age of 45 years and had sought to shed 4 senior executives aged between 45 and 62 in favour of candidates with what was euphemistically described as a more “international outlook”. Aside from the discrimination involved, from a business perspective, shedding decades of industry knowledge and experience rather than working to harness it effectively, suggests a huge own goal on the part of the employer.


If the UK is to achieve growth and productivity, then employers will play a crucial role in making it happen. And as part of that, they’ll need to ensure they have created an environment in which their older employees can thrive.  This may also involve making accommodations for older workers such as: 


  • Implementing regular performance reviews for all employees, regardless of age

  • Offering training and development opportunities to workers of all ages. With the increasing advance of AI this is particularly important 

  • Considering flexible working arrangements that may benefit older workers – (a 2022 ONS report found that 23% of economically inactive over 50s would consider a return to work if the working pattern was more flexible)

  • Ensuring recruitment and promotion decisions are based on merit, not age

  • Providing reasonable accommodations for age-related health issues when possible


What happens when accommodations are made, but an older employee is still unable to perform their duties as required? 


There is a balancing act between the protected characteristic of age and an employer’s confidence in its employees to perform adequately. Older workers may correctly assert that they have the right not to be discriminated against on the grounds of age, e.g. not being offered a promotion over a younger employee. 


However, as an employer, if an employee is unable to deliver and perform the duties they were engaged to perform,  because they lack the capacity, then employers must be able to manage their exits in a dignified and appropriate way without the risk of litigation . 


Do employers need to be braver?

There’s a case to be made for UK employers to be braver and more confident; A: in accommodating people but B, where accommodations are not enough, 

in being able to tell someone when it’s time to stop. It is a difficult issue but there are a number of ways that employers can tackle the issue. These include:


  1. Performance reviews: Every workplace has a system of reviewing employees’ performance, e.g. quarterly reviews or appraisals. This is something which occurs in the workplace regardless of the age or any other characteristic of an employee. Using an objective criteria for reviewing an employee’s performance, which covers capability to do the job, can be an effective way of then performance managing those older employees that are not performing due to their lack of capacity. 


  1. Capability under section 98 of the Employment Rights Act: One of the potentially fair reasons for dismissal is capability and so if an employer properly follows the correct process i.e. performance reviews and performance improvement plans, this could be a way for employers to manage out employees who lack capacity and are no longer able to perform their role.   Health and safety issues need to be taken into account as well as risk assessment with older employees in the workplace. 


What’s next for employers?

With increasingly limited business immigration options, UK Plc is going to have to look inwards to drive the growth and productivity the country needs during the next Parliament. 


Harnessing the considerable power and experience of an older workforce by tempting many back to work and keeping them there through flexible working, ongoing training, and appropriate health accommodations may be part of the answer. Just as long as employees and employers are both wise enough to know when to make accommodations, and when it’s best for all parties to call it a day.

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