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July 05, 2008
FORCED RETIREMENTS
There are laws that provide some positive protection against discrimination on the grounds of race, sex and gender, for example. This does not stop apparent discrimination, as in the pay disparities between the sexes, but laws are nonetheless progressive steps. Age discrimination is a bastion yet to be breached by strong laws, though proposed Government legislation seems likely to tackle some blatant forms of discrimination against the elderly, such as health screening and the difficulties in obtaining insurance, etc.
In this country there was a mandatory retirement age of 65. In most jobs, including probation, you had to go at 65. There have always been other arrangements in existence – you can become a prime minister at 65 and you could sit as a judge well into your 70s, suggesting that experience and knowledge is valued in some areas.
In 2006 the law changed and workers were given the right to request to work beyond 65. However, employers were under no obligation to keep them on. The obligation on the employer is a ‘duty to consider’ requests to work beyond 65.
HPA have what is called a planned retirement policy. It was first discussed with the unions in February 2007. Napo asked at that time, why do we need a fixed retirement age? That question was never answered, two weeks later the policy was on the database, some three months before it was approved by the board. Given the links between age and discrimination it may have been helpful for the policy to have been subject to an ‘equalities impact assessment’ (which all policies/procedures should have) as that may have looked at the issues of forced retirements in the round and perhaps have amended or at least informed the two criteria that HPA set down for judging whether an individual would be able to work beyond 65.
The criteria are:
Staff have skills, knowledge or experience that are key to the Hampshire Probation Area meeting its objectives and which the Hampshire Probation Area will have difficulty replacing;
and/or
Staff are employed in posts that the Hampshire Probation Area will have difficulty recruiting to.
These criteria could be view as employer-centric – in that the loyalty, experience, performance and commitment of the individual will not be a significant consideration, in fact such qualities seem not to matter. It is all about what is in the interests of the employer – there is no balancing of interests, unlike in applications for flexible working where the employee has recourse to a legal remedy if he/she believes the employer has not reached a balanced and fair decision.
We know some staff in HPA have received extensions but we do not objectively know how they satisfied the criteria. The criteria makes clear that it's primarily about recruitment difficulties and therefore a postholder in a role with such difficulties is more likely, it would seem, to be offered an extension. Conversely, a post such as probation officer, where recruitment is not such a challenge, not least as qualifying probation officers worry about getting a job these days, then, following the criteria, extensions would seem a forlorn hope. There seems no reason why this recruitment information about posts should not be freely available as at least it would enable those facing the prospect of a forced retirement to realistically assess their prospects of an extension instead of going through a process that will almost inevitably end in disapoinment and possibly end careers on a sour note with staff feeling aggrieved about the fairness of the process. As HPA favour the mandatory retirement age, and will only make exceptions on recruitment grounds and skill sets that must reach the high threshold of being 'key' to meeting HPA's objectives,it would greatly assist staff to have insight into areas of difficult recruitment and the types of skill sets that are regarded as key assets.
HPA is doing nothing illegal. As things stand with the law they are observing the minimum standards and going through the process of a duty to consider. On the other hand some organisations are going beyond the minimum for moral reasons – organisations that are hard-headed and business-focused - Tesco has offered its staff the chance to work beyond 65 on both moral and business grounds, and other retailers, including Marks & Spencer and Asda, have also relaxed or ditched the mandatory retirement age. With no disrespect to staff in Tesco’s it is perverse to think that you have a better chance of remaining in work as a shelf stacker than you do as a trained and experienced member of the probation service.
Sometimes it takes the law time to catch up with what is morally right. It was once legal to deny women the vote, to send children up chimneys, to imprison homosexuals and administer behaviour therapy to ‘correct’ their ‘distorted thinking’. There is a case going through the European Court at present – called the Hayday case it challenges the mandatory retirement age of 65. If successful then employers will not be able to get away with dismissing staff just because of age. The next stage of the case will come on 23rd September 2008 when the Advocate General will publish his opinion on the case. The Advocate General is a lawyer to the Court who was at the hearing. He gives guidance on judgments which the Court will usually follow.
In the meantime anyone forced to retire can register their case with an employment tribunal where it will be put on hold pending the outcome of Heyday. This was a positive step by the employment tribunals and it’s just regrettable, given that there will be a binding legal judgment through soon, that employers, including probation employers, are still forcing staff to retire. Those individuals may be able to claim compensation from their employers if Heyday wins, but that may be scant consolation for being forced to leave a job they wish to continue doing.
But as things stand: you can be dismissed at 65 and the only reason your employer needs to give is that you are 65 - reaching the retirement age is the reason for your dismissal. Maybe in the years ahead when we look back on such practices they will be condemned as discriminatory and unenlightened. As for our funder, the taxpayer, Lawyers have warned employers that they could be laying themselves open to large compensation claims if they force workers to retire at 65 - even though the current law allows them to do so.
"There is no good reason, politically, socially or economically, for the Government to permit forced retirement ages - rules which, of course, don't apply to government ministers. We hope the court will accept that the legislation flies in the face of European anti-discrimination laws. (Ailsa Ogilvie, Director of Heyday)
Research shows that mature workers are good for business and good for the economy:
Company profits would rise between 50m and 110m if forced retirement was scrapped - and that's according to Government figures;
The Government also estimates that if people were able to work beyond 65 it would pump between 230m and 520m into the economy;
The USA abolished forced retirement in 1986 - leading to 10-20% increase in the number of over 65s in work.
'To tell those who enjoy their work that they can no longer do it is cruel.'
Posted by Hampshire at July 5, 2008 02:40 PM