Town Planning | Urban Design | Green Spaces

Focusing on the individual rather than their age

The recent pledge by eight leading companies, including Aviva, Boots and Barclays, to increase the number of over-50s in their workforce by 12 per cent was lauded as a much-needed boost to older workers, who are set to play an increasingly important role in Britain's economy.

The pledge, which is part of an initiative to secure a million additional jobs for older workers, will also see companies publish data on the age of their workforce as they seek to reach their recruitment targets by 2022. The charity behind the scheme, Business in the Community, argues that by boosting the number of older workers, employers will benefit from the greater breadth and depth of their knowledge, but the move is also needed to fill a labour gap caused by the ageing population.

Keeping it legal

HR teams looking to improve their age diversity by employing older staff should take care to ensure that advertisements or other aspects of the recruitment process do not place workers of any age group at a disadvantage, or ask unlawful pre-employment health questions. The same applies when it comes to access to training and career progression.

This is all the more important given the abolition of the default retirement age, which previously allowed employers to compulsorily retire employees at age 65. While concerns were expressed, at the time, as to how employers might be affected by this decision, in practice it has not given rise to significant difficulties. It could be argued that the opposite has been the case, as it has encouraged open and supportive discussions with older employees on future intentions, allowing both parties to benefit from flexible working arrangements and the retention of key skills and experience.

Physical capability

Nevertheless, Business in the Community points to figures showing that the employment rate currently drops sharply among older age groups, to 70 per cent for those aged 50-64 and just 21 per cent for those aged 65-69. One concern of many employers is that while they wish to avoid discriminating on age grounds, physical capability undeniably decreases with age.

This issue was recently addressed by the European Court of Justice (ECJ), but remains a minefield for employers. The case of Fries v Lufthansa CityLine involved a commercial pilot who challenged the termination of his employment when he reached the retirement age of 65. The court accepted that this involved differential treatment based on age but this was found to be justified on the grounds of maintaining a high uniform level of aviation safety.

The pilot argued that that there was no scientifically proven data establishing increased danger at age 65 and that this would depend upon factors unique to each individual. In most cases, this would be a forceful argument and undoubtedly correct, since employers must not make assumptions based on age but assess the functional capability of each individual. However, in the particular context of aviation safety, the ECJ held that faced with scientific uncertainty it was open to the EU to take this measure to guarantee a high level of safety and the age limit of 65 was considered high enough to be objectively justified in these exceptional circumstances.

Employers and HR professionals with valid concerns relating to performance or health-related issues can mitigate risks by taking a supportive and flexible approach, while considering making reasonable adjustments to roles, which may be required in any event in the case of disability. In the end, focusing on the individual, rather than age, recognises age diversity and minimises legal risk.