Increased life expectancy and declining fertility rates mean that the world’s population is ageing. This demographic challenge looks set to continue, and there are now more people aged 65 and older than there are aged under five. To succeed, particularly in the context of the continuing skills shortages, employers must increase their efforts to recruit and retain older workers.
In the UK in particular, we have seen a lot in the press over the last few months about older people leaving the workforce. Whereas previously the number of people working later in life had been increasing, recent Office for National Statistics (ONS) research identified that there was a significant increase in people aged 50 years and over in the UK who have become “economically inactive” (meaning they are not in employment and are not looking for work) since the start of the coronavirus pandemic.
ONS research has identified many reasons for people in this age group becoming economically inactive. Some said they simply wanted to stop work and have a change in lifestyle whereas others felt they had no option due to redundancy or mental or physical health issues.
Although the current cost of living crisis may mean that more older people need to return to the workplace for financial reasons, the skill and labour shortages within the wider economy are being exacerbated by the loss of older workers. As older workers have lots of skills and experience to offer, employers can benefit from taking steps to retain their existing workers as they get older as well as to recruit older workers into their organisation. One way that employers can do this is by considering what an ‘over 50s friendly’ workplace may look like.
Age is a ‘protected characteristic’ under UK equality law. In short, this means that employees must not be treated less favourably due to their age (unless this can be objectively justified). The law protects employees of all ages, so employers must be careful that any benefits or policies they introduce which aim to support older workers do not unjustifiably disadvantage younger groups. However, employers must achieve a difficult balance as, if they fail to pay proper attention to the needs of their older employees, they risk not only letting them down but potentially being deemed to have indirectly discriminated on the grounds of age.
In recent years we have seen employers exploring the scope for taking ‘positive action’ (also called ‘affirmative action’) to address underrepresentation of other protected groups, for example women and people from certain ethnic groups. The legal framework around positive action is heavily restricted, however, and it can be difficult to take meaningful steps to improve gender or ethnic diversity without falling into the trap of unlawful positive discrimination. Notwithstanding this, age is an unusual protected characteristic because, although employees of all ages are protected, employers are allowed to positively and directly discriminate on age grounds where this can be objectively justified. This is not true for sex or race discrimination. Direct discrimination on age grounds is only allowed on legitimate social policy grounds (not the private interests of the employer) but, according to the UK Equality and Human Rights Commission, this could encompass objectives such as ensuring a generational mix or facilitating the participation of older workers in the workforce. Although this is an area which is not fully explored in case law, it means that employers have some legal leeway when it comes to initiatives aimed at recruiting and retaining older workers.
A good starting point is for employers to consider what the key issues may be for people over 50 who are considering leaving work or returning to work after a period of economic inactivity. Although it is tempting to identify declining health as the major issue (and it is one of the relevant factors), many people over 50 are in relatively good health and the issues affecting them in the workplace are much wider than this. Many will have new and difficult caring responsibilities, perhaps for ageing parents, their own children or their grandchildren. They may also face age discriminatory attitudes within the workplace which hamper or prevent their progression. Alternatively, having been working for over thirty years, they may find that their focus in life changes but their job, and expectations of them within that job, remain unchanged and inflexible.
There is no legal obligation to consider making ‘reasonable adjustments’ to a job for an older person in the same way as there is for disabled employees, but there is nothing to stop an employer offering flexibility in how work is done. The pandemic has demonstrated that flexibility in how, where and when a lot of jobs are done is very possible.
Employers can be creative with what they offer in terms of working practices, subject to any restraints imposed by the nature of the work, by allowing employees to reduce their contractual hours and/or change the location where they work either to suit their home responsibilities or lifestyle choices.
As well as permitting employees to work from home where appropriate, employers could also be supportive of remote working abroad. Employees lucky enough to have a second home abroad (or who have family living in other countries) may choose to stay in work longer if they can spend part of the year working from another location. However, the legal and practical implications of this option – in terms of tax and other issues – would need to be considered on a case-by-case basis.
Employers could also make changes to what working patterns look like. Of course, this could mean permitting employees to reduce their weekly working hours and work part-time rather than full-time. However, it could also mean changing the working pattern across a year rather than a week. Instead of working throughout the year (taking statutory and contractual holiday entitlement), contracts could provide for a minimum commitment for part of the year (e.g. for six weeks) with the option for employees to ‘dial up’ the amount of work done if they want to.
This may not be very practical for some roles and workplaces, but another option could be to allow employees to work, for example, nine months of the year with three months off. This type of work pattern has been called ‘Benidorm Leave’ as it could allow employees to spend the winter or summer in warmer climes. This may be very attractive to older employees who are not yet able (or do not wish) to retire but who may want to focus part of their year on something other than work. Of course, this type of arrangement may also be attractive to younger people who want, and can afford, to fit a period of travel or other activities into their working year.
Any contractual arrangement which includes a period of the year when an employee is not working may bring complications regarding how to treat statutory annual leave entitlement when they are not working, so the relevant contractual provisions would need to be clear about how this would operate in practice.
Older people who have been in work since their late teens or early twenties may not yet be ready for retirement (either financially or psychologically) but they may want to change what they do at work, perhaps to focus on particular areas of work or to reduce responsibility within their role. If their job involves physical duties, it may be that they would prefer (or need) to reduce the physical nature of their role.
As noted above, although employers are not obliged to alter roles for, or offer alternative roles to, older employees (as they may be for disabled employees), they may wish to discuss these options. Care would need to be taken as to how and when such discussions take place to avoid making assumptions about older workers which could amount to age discrimination. However, the option to discuss this type of flexibility could be publicised within a flexible working policy so that an older employee could feel comfortable raising the prospect of some kind of change of duties, responsibilities or role. The employer would not be obliged to make any such changes, but they may be prepared to do so in order to retain the employee’s skills and experience.
Learning and development are high on most employers’ agendas, particularly as changes in technology mean that employees need to keep up to date to carry on doing their jobs effectively. To avoid age discrimination risks, managers should not assume that older employees are not interested in opportunities for training.
Employers may also want to consider whether they can offer retraining opportunities to employees when other opportunities may be available within their organisation. Again, this may help them retain the skills and experience of older employees who may otherwise look for opportunities elsewhere or think of giving up work altogether.
Offering time off work for caring responsibilities may particularly help older workers, as they are more likely to have responsibilities for aging relatives and/or grandchildren. Employers could decide to offer specific contractual terms aimed at workers who have grandparental responsibilities.
Time off could also be offered to those with other caring responsibilities. This could be an agreed one-off period of absence from work to support a particularly difficult time, or it could be offered as time off during the working week or a change in working hours as part of a flexible work package (discussed above) to support caring responsibilities.
We all may benefit from some time off work in addition to our annual holiday entitlement from time to time. Employers could offer unpaid career or sabbatical breaks which may be more attractive to older employees who may feel more in need of a break and/or more financially able to support a period of unpaid time off to pursue other interests, recharge and return to work refreshed.
Returnships are supported short-term programmes which are designed to be a stepping stone for people who are looking to return to the workplace after an extended break from work. Some large global employers now offer this type of programme, but it is something that smaller employers could also consider.
Employers thinking of doing this will need to consider whether they would offer it only to people who are over a certain age. This may lead to age discrimination claims and opening up such a programme to people of any age who have been out of the workforce for some time may be a better option.
Offering health care benefits (and other wellbeing initiatives and benefits) is a good way to support all employees in the workplace; for example, health insurance and health checks, private GP appointments, support for flu/other regular vaccinations, specific assistance with menopause. These benefits may be particularly attractive to older employees and could be a good way to attract new recruits from older age brackets. Although many older people remain in relatively good health throughout their career, they are still more likely than younger people to develop serious or long-term health conditions. Supportive policies will provide reassurance about the employer’s approach towards health issues.
The government currently offers online assistance to encourage people to do a ‘Mid-life MOT’ considering work, health, money, etc. Toolkits are available to help employers offer this type of assistance in the workplace. Employers could take advantage of this existing programme or they could offer other, privately organised, advice and assistance. It is unlikely that someone would choose to work for an employer simply because they offer this type of benefit, but existing employees may find it helpful and it may assist them to look at opportunities and arrangements to keep them in work longer.
Reverse mentoring schemes (where younger, more junior employees mentor older, more senior employees) can give younger employees a chance to influence strategic decisions and feel more connected at the same time as building skills and awareness for the mentees; for example, in areas such as digital and social media skills.
Many employers now have diversity, equity and inclusion (DE&I) policies in place. They should make sure that these policies include age positive provisions and take steps to ensure that these are upheld in practice; for example, calling out when ageist jokes are made in the workplace (which even now still seems to be more acceptable than any kind of other discriminatory banter). Training managers is key to the successful implementation of such policies.
Employers should also consider whether their job advertisements or recruitment practices may be biased towards younger recruits in terms, for example, of the language used. Employers should also take into account experience and not just qualifications when setting criteria for jobs.
Of course, a lot of the above will be attractive to workers of any age. A recent research paper published in the US identified that although ‘age-friendliness’ within occupations had increased between 1990 and 2020, it was not just older workers who benefitted from these changes but also women and college graduates. Offering flexibilities and benefits to all employees is also the best way to avoid any unhelpful age discrimination issues. Notwithstanding this, we expect that an ageing workforce coupled with a tight labour market will mean that we see many employers looking more deliberately at what they can do to make their workplace a more attractive place for the older employee.