From 6 April the UK Government has abolished the default retirement age of 65. This is good news and bad. The good news is that employers will be able to retain a fixed retirement age if they can justify it. The bad news is that this is more or less impossible. Our enquiries of our clients and attendees at our seminars has indicated that an overwhelming majority of employers are not even going to try, an approach we would very much support in the great majority of cases. Sadly you cannot get prior clearance from the Tribunals that a particular age has been successfully justified so it is only once your compulsory retirement is challenged that you will find out — i.e. only after you have dismissed the employee on age grounds, so you are irretrievably sunk if it has not.

As the BBC recently reported, this has all just too late for one Longleat Estate worker who was born five months too early to take advantage of the abolition of the default retirement age and is facing forced retirement. Mr Thomas, a security guard on the Longleat Estate for 24 years, turns 65 at the beginning of May and was informed in October 2010 that he would be required to retire on 2 May 2011. Mr Thomas says that his employer has not taken into account his loyalty or experience and his ability to do the job for the last 24 years. The Longleat Estate has said that this is a process of modernisation and it needs employees with “new diverse skills and experience”, which to us appears fairly clear short-hand for his being too old and its still being lawful at the time.

Not any more. Despite the hopes of the Government (just think of all those income tax revenues) not everyone wants to work to 80 and beyond but at least employees now have the chance to do so. This will create many issues for employers in staff recruitment and retention, and manpower and succession planning. None of this is insurmountable for employers but it will involve a change in mind set. A number of employers (including high street retailers) have lived without a compulsory retirement age for many years. Marks & Spencer’s said at one of our recent client seminars that they have handled the question by the rigid and age-blind application of their performance management and absence management policies. While unassailable in principle as an approach, this may create emotional or cultural difficulties for managers not inclined to take someone old enough to be their parent or even grandparent through the unpleasantness of formal performance management procedures. Fully understandable but allowing them to pull their punches is much worse all round — it misleads the employee, leaves the employer evidentially high and dry in the Tribunal and can even lead to age discrimination claims from younger workers in respect of whom the manager lacks the same sensitivity. So over to you to train them that there is no room for such scruples in the workplace — not a terribly attractive message, but sadly a necessary one.