Are managers increasing business risk by running scared of age discrimination laws?

In this HR Blast we discuss the subject of age discrimination and safe working… Are they too old to drive safely? Should I let them pick that up or step in and offer help? Will that weekend stock-take prove too much on top of a week’s work?

With increased life expectancy, the abolition of the default retirement age and the raising of the state pension age, there are 23 million people in the UK who will want/need to work beyond the age of 65. If you couple this with the fact that age is one of the nine protected characteristics which fall within the remit of the Equality Act, it is no wonder employers are cautious around managing an increasingly older workforce and, in particular, the risks associated with dismissing an older worker for incapability, even if the reasons are legitimate.

All too commonly we see managers being risk averse, shying away from effectively managing older workers for fear of being subject to an age discrimination claim. But in reality, there are far greater financial and reputational risks to employers who fail to properly manage the health, safety and capability of their older workers.

What happens when things go wrong?

In 2015, reported by the media, was the case of a 77 year old bus driver, who killed two members of the public when he crashed a double decker bus into a supermarket.He had mistaken the accelerator for the brake. The bus driver had been working in excess of 70 hours per week and had been warned on numerous occasions that he wasn’t fit to drive. The Bus Company were subsequently found guilty of breaches contrary to Health and Safety at Work and were subject to a hefty fine of over £2 million. Rightly or wrongly the debate at the time was “Is 77 too old to be driving a bus?”

Another case involved a 60 year old who worked as a Bin Lorry Driver for Glasgow City Council in 2014. The employee failed to disclose his medical condition to his employer and subsequently caused a fatal crash killing six members of the public. Whilst in this instance the employer was not responsible for the incident as the medical condition was not disclosed to them, it poses the question of how far do you go as an employer to vet your employee’s capability to undertake a role?

What are the risks and implications for employers?

As these examples indicate, employers have a huge responsibility, not just in terms of duty of care to their own employees, but also ensuring that their employees are fully aware of their own Health and Safety responsibilities and take steps to ensure they are not endangering themselves, colleagues or members of the public.

Failure to take reasonable steps under the provisions of Health and Safety (or Corporate Manslaughter and Homicide legislation) can be very costly to employers. Whilst in the instance of the Bus Company they were fined £2 million as a result of Health and Safety breaches, if organisations are found to be in breach of Health and Safety requirements, they can face an unlimited fine if found guilty. Imprisonment is another option for the courts, with 23 individuals (20 directors and 3 employees) being sentenced in the first 8 months when the legislation was updated in 2016. Unlimited fines and the threat of imprisonment of directors or employees is not something most businesses cannot afford to take lightly.

Assessing risk

Whilst the cited examples are extreme and relevant to the transport industry, there are still many risks, challenges and issues employers need to be mindful of when managing their ageing workforce. The industries with the highest number of work-related injuries are within Construction, Agriculture, Health Service and Manufacturing. However, there are varying degrees of risks in all workplaces so no employer is exempt, particularly when incidents are higher within the older worker age bracket.

According to a report produced by the HSE, as our population is aging so are the proportion of fatal injuries with workers aged 65 and over. Statistics show that older workers are disproportionately more vulnerable at work, with 40% of fatalities among the over 60’s, which is five times more than any other age group. In addition, those age 55+ are twice at risk of death in a vehicle crash (driven whilst at work) than younger workers.

Haringey Council, focussing on all people rather than just workers, comments that older people are at particular risk of death and disability from falls on stairs or steps. ‘Over 3,000 people over the age of 65 years are killed annually in the UK in falls’. Its advice includes a suggestion that those on more than 4 types of medication get them regularly reviewed! Now there’s a topic most line managers will shy away from discussing!

Given the risks, why recruit older workers?

Whilst these figures can be alarming it is important to note that this shouldn’t deter organisations and their managers from recruiting and retaining a wealth of knowledge and experience that older workers possess. It’s a case of having robust policies and procedures, applying proper, safe working practices and ensuring your managers and employees have received the appropriate training so they fully understand their health and safety responsibilities in the workplace.

Many jobs are more dependent on knowledge and experience as opposed to strength or physical fitness, so the wisdom and invaluable expertise that older workers bring to the table are key for organisational success.

There are also many benefits to having a diverse workforce and a report published by the Centre for Ageing Better said making sure older workers can stay in good quality employment is crucial for the economy.

According to Employment Studies, the UK economy could struggle to fill as many as one million jobs by 2035, due to lower numbers of young people entering the workplace. Therefore, the UK will need older workers to fill this gap and it will be imperative for businesses to identify initiatives to support and retain older workers, alongside training line managers to understand what they can and cannot do, can and cannot say etc. when managing their older workers.

What practical steps can you take to get the best out of your older workforce?

• Encourage an open transparent culture – as a starter for ten you need a positive culture where older workers feel comfortable to discuss with their managers their health, worries, abilities and future intentions to work – without being in fear of repercussions of losing their job or being discriminated against.

• Look at ways to retain employees – Understand the reason why older workers choose to join you, choose to stay with you or have chosen to leave you. And if time is tight, electronic surveys in today’s world can be easily and quickly put together, enabling you to gather valuable data for us in your business planning. Why not ask us to support if you lack the time to do this?

• Embed the opportunities for Flexible Working – Whether this be in terms of working hours, location, working pattern or a phased retirement plan, flexible working is a great way of engaging with and retaining older workers. Have clear policies and promote a flexible workplace that encourages and supports older workers to thrive at work for as long as they are able, and wish, to.

• Appropriately manage working hours – As we know with the case of the Bus Driver, his employer had permitted him to work in excess of 70 hours. Be clear on your policy around working hours and what is reasonable based on role type, physical demands of the role and the individuals’ abilities to carry out the role. If you have concerns with the number of hours being worked, particularly your older workers, ensure you are managing this effectively and having those conversations with your employees. If necessary, conduct a Risk Assessment and use this as the basis of your discussions. If you need legal advice or support with then, then call us – it\’s what we are here for!

• Manage work related implications of ill health – If you have access to them, Occupational Health Services and regular medical assessments are a useful way of obtaining advice on how to best manage an employee with health issues. If a particular role is physically demanding it would be reasonable to request employees attend a regular annual medical assessment. If your OH advisors keep telling you ‘no’ or being less than helpful in working with your business and understanding your business requirements, perhaps its time to bin them and find an organisation better able to help you?

• Effective Performance Management – whatever the age – It is important not to assume that the older you get, the less able you are to perform in your job role. If there are concerns in relation to an older worker’s performance, you should treat them in the same way that you would treat any other employee whose performance was giving you concern. Having robust capability procedures and line managers who have the ability to effectively manage performance will give you the confidence not to shy away from managing poor performance in older workers.

And MOST importantly

Upskill your Line Managers – All too often managers avoid having those difficult conversations with employees, especially older workers, through fear of being subject to an age discrimination claim or being blamed internally if an issue kicks off. Training and/or coaching will give your managers increased confidence and also the know how to deal with complex employee issues. In our experience, too many organisations think that managers are born knowing what employment law does and does not permit – but that really is not the case 😊. Employment law needs to be taught, so give your managers an opportunity to learn what they need to learn so that they can get on with managing their staff appropriately, professionally and confidently.  

Navigating around the challenges of employment matters can be tricky so the team at Jaluch are here to help. Whether you require practical employment support and advice or you would like us to deliver training to upskill your line managers, we operate a pay as you go system so can provide the flexibility you need without signing into a contract.

To contact us, call one of our friendly HR Consultants today on 01425 479888, alternatively you can email us or chat with us online.

Check out our Training Courses including \”Employment Law Essentials – Hearing the Warning Bells\” – a one day course for managers in employment law.

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