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Age discrimination claims: are you at risk?

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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.

But 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.

An important document, which is often overlooked, a job description should be complete, accurate and updated regularly. Before an employer can begin to conduct staff appraisals or set performance objectives, it's essential they are crystal clear about each employee's duties. 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.

Regular appraisals are vital for motivating staff as well as identifying and ironing out potential concerns. It must be constructive in that the individual should be encouraged to think about how and in which ways they want to develop or indeed if they are happy in their current role. 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.

There can be a tendency to overlook older, more established members of staff when it comes to 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.

For employees deemed to be underperforming, the next step is to move them on to a formal performance improvement plan (PIP), which should be designed with a view to helping the individual get back on track. 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.

Ultimately consistency and communication are key and should be the foundation for all forms of employee interaction. Following these principles and incorporating the tools outlined above will equip employers with a robust arsenal for defending potential instances of age discrimination and ensure all staff are treated fairly, regardless of age.

Jacqueline McCluskey (pictured), employment law partner, HBJ Gateley

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