There are conflicting reports as to how effective age discrimination laws have really been, but it’s clear there is still plenty of work to be done to encourage more older workers into the workplace. Louise Druce looks at the issues.

Depending on which statistics you believe, it seems the number of older workers is on the rise. However, while some sectors have nailed non-discriminatory recruitment and retention policies, there is plenty of evidence to suggest myths and stereotypes concerning the capabilities of people approaching retirement age still abound, creating a barrier to a more dynamic workforce.

By far, the retail sector has had the most success stories regarding employing older workers but it would be wrong to assume it’s the only career choice once the gold watch is looming. However, it does beg the question as to why other sectors have had more limited success in attracting and retaining older workers, especially with tougher age legislation in force for well over a year.

“For employers, there remains a feeling they want to take on somebody with a long-term career [prospect] with the company, who wants to achieve. There is still prejudice that someone close to retirement will not match that,” says Paul Archer, partner of employment law at Lemon&Co.

It’s something indefensible at the tribunal stage, of course, but seems to be more absurd considering the average new recruit today will only stick with a firm for a few years before they move on. “University graduates are much more likely to leave the company or change their career structure after three or four years,” points out Colin Tenwick, CEO of recruitment firm StepStone.

“Companies are adjusting to that and becoming much more flexible about building in gaps where people can leave the business and return. There are parallels with people at the end of their working career.”

Fork in the career path

For Tenwick, the issue runs even deeper into the business culture, with too much of a focus on today’s needs rather than what is likely to happen in the future. “Saying there is very little support being given to encourage older people to continue to contribute to a business beyond a particular time scale, tends to indicate businesses don’t have a coherent strategy in place in order to attract, recruit or retain older workers,” he says.

“We still have the view we retire at the top or peak of a career. What we don’t have is the career structures to enable people to start moving towards part-time or flexible working, or to bring younger people into the workplace to fulfil management or leadership roles and giving other people positions to support and develop them into those roles.”

He argues that just because a person is reaching or has surpassed the statutory retirement age, they still want to have a meaningful role and connect with the business. It just may take a rethink about the type of role they will play. “There is an enormous amount of experience that can be tapped into,” he says. “Increasingly, people at 60 do want to continue working or contribute but don’t necessarily want to do it 9-5, five days a week.”

It’s something the Chartered Institute of Personnel and Development’s (CIPD) adversity advisor, Dianah Worman, can relate to. She highlights that everyone has different needs and circumstances, so the key to retention is adaptability. “Does age really matter?” she asks. “Your business needs to have the best skills, keep the talent and provide the stability it needs, as well as fresh thoughts and ideas to sustain its own performance. Knowledge is power. It makes no sense to ignore pockets of expertise and skills.”

However, she also concedes some older workers are counting themselves out of the market because they believe their success rate is quite low or give up after a few knock backs. She encourages people not to give up and believes as older workers become more confident in applying for jobs, this will help bolster more activity in the recruitment market.

Bound by red tape

Unfortunately, despite the Office for National Statistics reporting the number of people working over state pension age increased by 35,000 to 1.258 million between September-November 2007, it could be the very laws brought in to protect workers that are hindering their prospects.

The Age and Employment Network (TAEN) says the figures mask employer attitudes that once a person reaches 65, they are deemed ‘past their sell-by date’. “Employers are being aided and abetted in this unfair and absurd discrimination against older workers by the age discrimination regulations, which make it lawful to fire people merely because they have reached that age,” claims TAEN’s chief executive, Chris Ball.

Alan Beasley, policy and advice specialist at The Employers Forum on Age, has also deemed the retirement process “horrendously complicated”. In simple terms, the law prescribes a national ‘default’ retirement age of 65 but employees have the right to request work beyond that age.

However, there is a judicial challenge in the European Court of Justice (Heyday case) questioning whether the government has the authority to impose a default age. Until this is resolved, the Employment Tribunals Service has suspended all cases involving age discrimination, which in itself has major implications for past cases. In addition, the government is carrying out its own review into whether or not the default age should be abolished.

“Employers are in a rock and a hard place,” says Beasley. “The view we’re taking is if you have legal uncertainty and there is the likelihood of getting rid of the default retirement age, as an employer you should be looking at whether you really need it.

“Maybe some employers might not see this as a bad thing as they can get out of the whole cumbersome process of having to retire people according to procedure and agree with people, in the normal course of events, when they want to cease work. It does put a lot of pressure on having a good performance management and appraisal system.”

Archer also highlights the fact that under age regulations, you have to give the employee six months’ notice of their retirement date. Even if the person renews contracts past that date, the same rules apply again and again. It’s something he calls “counter intuitive” as many employers have found themselves in hot water because of it.

“Ironically, prior to the law, employing someone over the age of 65 was quite an attractive prospect because they were relatively dispensable workers,” he adds. “Parting company was pretty straight forward and there was an advantage. Now, employing someone over 65 carries with it risk and burden, to some extent.”

For now, we are stuck with the current age discrimination law and Worman says despite it, prejudice isn’t going to magically disappear overnight. However, she leaves employers with this thought: “If someone can add to your business in any kind of way, if they are worth it and they want to stay working for you, what is the problem? It doesn’t matter how old they are.”