As allegations of age discrimination against TV and radio personalities continue, employers will now have to be far more careful. In January 2011, ex-Countryfile presenter Miriam O'Reilly successfully won her battle against the BBC for their unfair decision to sack her because of her age. The Employment Tribunal's landmark ruling was a 'powerful signal' against age discrimination. With government's decision to phase out retirement age of 65 from 6 April and abolish it by 1 October, campaigners against ageism now have more reason to celebrate.
Under the current legislation, employers can force an employee to retire when they reach 65 without having to give any compensation. Retirement, therefore, is currently a fair reason for dismissal, provided the employer gives six months notice and considers any written application by the employee to continue working. The decision to abolish this legislation is a significant recognition that with people living longer and changing structure of our society, it is no longer justifiable or economical to force people into retirement.
Under the new proposals, employers can't retire employees because they turn 65. Employees will now be given the choice of when to retire. Transitional arrangements in place before new rules take effect stipulates that only employees who are told of their retirement before 6 April and who are already 65 or turn 65 before 1 October, can be asked to leave work.
However, employers can still impose retirement but would need to show that it can be 'objectively justified' as a proportionate means of achieving a legitimate aim. For example, where physical capacity is a particular requirement. If objective justification is not possible, then the employer's actions will amount to unlawful discrimination on the basis of age.
Research shows that in 2009 more than 100,000 workers were forced to retire. The new proposals, therefore, have strong support and seen as a positive step in ensuring older employees have freedom to work. Being 65 no longer means that your effectiveness and standard of performance as an employee should be negatively viewed. Indeed, many workers of 65 or over are still fit, active and keen to remain in work. It was always rather an anomaly that employers could deprive the workforce of valuable skills and experience of the older workers.
The emphasis, however, is not on special treatment for over 65s but equality. Employers can still dismiss workers for poor performance. In fact, we may see an increase in employers making this argument, especially as the qualification period needed for an employee to bring an unfair dismissal claim against his employer is likely to be increased from one to two years. But old age should not be linked with inability to perform well. Employers will have to objectively assess the capabilities of their employees, utilise them effectively, consider offering flexible working hours, training and more availability of part-time work.
The government has recognised that attitudes towards ageing population must change. The employers should support this and embrace the new culture of retaining more older people in work.
