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Older workers can voluntarily retire at a time they choose and draw any occupational pension they are entitled to. However, employers cannot force employees to retire or set a retirement age unless it can be objectively justified as what the law terms 'a proportionate means of achieving a legitimate aim'. Further information is available on page 19 of pdf icon Equality and discrimination: understand the basics [352kb].

Work place discussions

Whatever the age of an employee, discussing in a general way their future aims and aspirations can help an employer identify training or development needs and provide an opportunity to discuss future work requirements. For all employees, these discussions may involve the question of where they see themselves in the next few years and how they view their contribution to the organisation. A useful exercise is to ask open questions regarding an employee's aims and plans for the short, medium and long term. Some employers may find it useful to hold these discussions as part of their formal appraisal process.

Any direct question such as "are you planning to retire in the near future" is best avoided. However, if the employee indicates they wish to retire there is no problem in the employer talking to them about the date of their retirement and any working arrangements leading up to it.

The outcome of any workplace discussions should be recorded by the employer and held for as long as there is a business need for doing so. It would be good practice to give a copy to the employee.

If an employee has given their employer formal notice of their intention to retire on a certain date, it is under no obligation to let them withdraw their notice. However, if an employee tells their employer during a discussion that they are planning to retire, they may change their minds before formal notice is given.

Where an employee changes their mind and decides not to retire, but where no notice has been given, the first thing an employer should then do is to discuss with the employee their reason for not retiring. This can help establish whether there is any issue the employer might be able to help the employee overcome  so they can retire on the due date or shortly after. Ultimately, however, if the employee decides they do not wish to retire, for whatever reason, then the employer cannot compulsorily retire them, as this would leave the employer open to a complaint of unfair dismissal.

Employers should ask themselves whether their managers are equipped to conduct workplace discussions fairly and effectively. Poorly-conducted workplace discussions can prove costly for a business. Acas can train managers how to conduct all types of workplace discussions and can do it for an employer on its premises. Why not make an enquiry.

Poor performance

If an employee is performing poorly, the employer should discuss this with them to establish a cause. Failure to address any poor performance with an employee because there is an expectation they will retire soon may be discriminatory. Employers should establish a reason for poor performance, agree with the employee what training and development would help them meet the business's expectations, and set a timetable for improvement. If by an agreed time, the employee's performance has not improved sufficiently and the employer has followed the company's poor performance procedure, it may then decide to dismiss the employee on capability grounds.

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