The retirement age debate: What is fair?

The issues surrounding retirement age are complex and can arouse heightened views on all sides. Increasingly, more people are choosing to work for longer. Research shows there are now record numbers of people aged over 50 in employment, while a report by Legal & General and the Centre for Economics and Business Research estimates that 47% of the workforce will be over 50 by 2030.

When the default retirement age was scrapped in 2011, older workers were able to continue working beyond 65, to reflect the fact that people are living for longer.

However, there are certain circumstances where an employer can set a compulsory retirement age, providing they can objectively justify it and demonstrate that it is a proportionate means of achieving a legitimate aim.

And so we come to the debate around set retirement ages. On the one hand, should employees ever be forced to retire at a certain age, and could that be considered ageist? On the other hand, could it be ageist that older workers in some professions are staying in work for longer, which is causing bottlenecks and potentially blocking younger people from progressing to more senior, stable jobs?

Why set a compulsory retirement age

First, let’s look at why some employers might consider setting a compulsory retirement age. “There are two main reasons in the UK that mean someone can be forced to retire,” explains Luke Price, senior research and policy manager for work at the Centre for Ageing Better. “The first relates to when a job requires a certain level of physical ability, such as in the construction industry. The second relates to jobs that have age limits set by law, for example, in the fire service. Obviously within these very broad examples, individuals can still be discriminated against and treated unlawfully – which would need to be tested via employment tribunal.”

Employers might also consider setting a compulsory retirement age to provide a career pathway for their workers and to enable effective and efficient succession planning, yet this can be risky, says Andrew Willis, associate director of legal at Croner. “There is a risk that affected workers could bring successful claims of age discrimination if they are forced to retire due to a policy like this, unless it can be shown that a compulsory retirement age is justified or is an occupational requirement.”

Should employers set retirement ages?

Even if there are justified reasons to force staff to retire at a certain age, there is still the question of whether employers should indeed be contemplating it, despite these reasons.

If there are justified, legitimate and provable reasons, then such actions might not be unlawful, remarks Price. “However, it could still be considered ageist if not necessarily discriminatory. Think about it this way: someone has potentially been doing a specific job for many years. At some point they are no longer able to meet the requirements of that job, which isn’t tied directly to age, and they are asked to retire. In many cases, it might be mutually beneficial for an employer to think instead: what else could this person do within my organisation? How could we use their vast experience and transferable skills in a different job here?”

Nick Wilson, employment law solicitor and partner at Robinson Ralph, advises employers to think carefully before implementing a set retirement age in these circumstances. “Both direct and indirect age discrimination are capable of being justified in law so long as the employer can establish, at the very least, that a compulsory retirement age is a proportionate means of achieving a legitimate aim. And whilst employers may be legally correct in enforcing a compulsory retirement age, businesses should also be mindful of the impact of it on industrial relations amongst staff and potential reputational damage that can arise from such a measure.”

The other side of the debate

In sectors such as academia, having a mandatory retirement age has caused some issues. In 2011, both Oxford and Cambridge University decided to retain an ‘employer justified retirement age’, based on several legitimate reasons, such as to promote intergenerational fairness, facilitate succession planning and enhance diversity – with the aim of creating opportunities for younger employees in the sector.

This has received some push back from senior academics, who have argued that the policy is ageist. Yet ageism can work both ways, with some early career academics facing job insecurity and ‘job blocking’ by older staff, meaning they are struggling to get a solid foothold on the career ladder.

“It could certainly be argued that a tendency to work longer in certain careers blocks the career progression of younger workers in the same sector,” comments Willis. “However, it would be difficult for a younger worker to pursue such a claim, as if a more senior position is not available to them it would be difficult for them to argue that their failure to progress amounted to unlawful discrimination.”

Katy Foster, senior HR consultant at Cream HR, adds that this situation is unlikely to be deemed ageist legally, but it may cause a blockage, and this is a genuine concern for some organisations and industries. “However, it is anticipated that with people working longer than ever before into later life, retirement will now look very different, and will likely be a more subtle process. For example, gradually reducing working hours, turning to different jobs that are more vocational, or maybe even taking a sabbatical. With a more gradual approach to retirement, organisations have an immense opportunity to nurture experience and pass it on naturally to new employees joining the company. Consider reciprocal training programmes that
enable both mentor and mentee to impart knowledge and skills as well as receive them.”

What is the fairest way to progress with this debate?

The retirement age debate almost certainly depends on specific contexts, such as sector, as there will be huge variables across all jobs and industries. However, decisions about whether someone meets the requirements of a certain job should generally be based on assessments of ability, regardless of age, says Price.

“Employers get unstuck when they start making assumptions based on age. It is vital that employers avoid correlating age with capability. Knowing how old someone is does not tell you what they can do at work, what they want to do at work, and what their aspirations are for the future.”

Increasing awareness of all the relevant issues will assist in understanding and hopefully reducing unlawful discrimination, adds Wilson. “There is much more to the debate than the employer simply taking steps because an employee is young or old. Of course, it will feel very personal to the employees affected and employers should have regard to that when making important operational decisions.”

Price concludes: “Getting older should not be a trigger to start thinking about or acting on these things. We need to challenge ageism in society, the labour market and in every workplace to ensure that ageist attitudes about what it means to get older, and the assumptions we make about older people, become a thing of the past.”

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