More hot news from the Department of Cheap Political Gestures earlier this week.  Under the not even remotely inflammatory headline “Old Slackers Face the Boot” the Evening Standard Evening Standard – Politics RSS feed reports somewhat vaguely on new Government proposals to help employers with the tricky issue of raising retirement with their older staff. 

Quite what these proposals are is unclear.  The sub-title to the headline is fairly unequivocal “Bosses get new powers to tell workers to retire”, while the text of the article refers only to new powers to tell workers that they should consider retirement, which is clearly a fundamentally different thing, 

Moving on from the “workplace discussions” mooted in the Acas Guide to Working Without a Default Retirement Age +ACAS Guide to Working Without a Default Retirement Age – Bing, the new measure proposed is the “protected conversation”, i.e. a conversation about retirement which staff will not be able to use against the employer at a later date. Hmm.  It is possible to foresee enormous drafting difficulties in setting the line between a question about an intended retirement date (clearly cautioned against in the Acas Guide, but presumably now intended to be permitted) and blatant age discrimination.  After all, though just as important for manpower planning and resource management purposes, the employer which asked its female staff when they were intending to have babies would be on a one-way trip to the Employment Tribunal.  Legally the two are just the same. 

We also have to remember that the Government already seems to think (despite the Acas Guide) that it is OK to ask about retirement plans.  The Employers’ Charter put out by the Department for Business Innovation and Skills The Employer’s Charter | Policies | BIS states clearly that so long as an employer acts “fairly and reasonably” (sadly totally undefined) it is entitled to “ask an employee about their future career plans, including retirement”.  The Charter is however generally regarded as not worth the paper it is written on so I guess we can just ignore that. 

Deputy Prime Minister Nick Clegg says in support of the new proposals that employers should not be afraid to have “frank discussions” with under-performing staff, regardless of their age, “for fear of those exchanges being used against them unfairly should a dispute end up at Tribunal”.  He hopes that the move will allow people to “treat each other like human beings and not like potential litigants”.  This sounds great, of course, but is totally incompatible with vast swathes of current employment legislation, in particular as it relates to unfair dismissal and discrimination.  In our experience the reluctance to address performance issues “frankly” is in no way limited to older staff.  Run that Evening Standard headline again referring to gay, pregnant, religious or disabled slackers, and it becomes instantly unacceptable, even though the brake which fear of litigation relating to those or other protected characteristics can put upon decent performance management procedures is just the same. 

We shall see where this particular Big Idea goes in due course.  In the meantime, if an employer wants to raise poor performance, all it needs now (just as it ever has) is the evidence. 

As to pushing staff towards retirement other than against a background of poor performance, the proposal is silent.  It is hard to see that much progress could be made here without running head-on into EU anti-discrimination directives, so it is presumably a case of no change there, then.