When are you going to retire? Don’t even ask!

December 16, 2021

Categories Employment Law Updates

Requiring employees to retire when they reach a fixed retirement age is direct age discrimination, unless it can be objectively justified as a proportionate means of achieving a legitimate aim. But what about simply asking someone whether they intend to retire?

There has been ACAS guidance since 2019 that employers should avoid asking employees directly when they are going to retire. To help plan the workforce for business need they should instead ask employees, regardless of age, what their short, medium and long-term plans are.

Now, a recent case has held that asking an employee when they are going to retire can amount to direct age discrimination.

The ruling was made after Ian Tapping, a civil servant in his 60s, sued his employer, the Ministry of Defence, for age discrimination.

Mr Tapping had complained about how he was treated at work and was worried that he might lose his job. He met with the lead of the employee services team, who then asked him when he was going to retire.

The MoD claimed that the question was justified in order to effectively manage staff and ensure effective succession planning. Judge James Bax accepted that these would be legitimate aims and needs of a business, however, found that there was no evidence that this was the intention behind the question.

The ruling stated that the question was unreasonable, as Mr Tapping had ‘shown no indication of wanting to leave his job’. The judge also found that a younger person would not have been asked about retirement, as they would not have been able to consider it in the short-term.

‘In the context of someone who has complained about behaviour against them to suggest that they could leave employment is not a step which is supportive or one which would address the fundamental concern. For someone who is seeking reassurance that their position and employment is safe, it is not reasonably necessary and therefore proportionate to ask if they are considering leaving.’

‘Suggesting that someone retires and leaves is not a solution to the subject matter of the grievance, it is a means of removing the aggrieved person from the problem.’

Avoid the question about retirement at all costs?

The context in which the question was asked in this case was entirely relevant to the finding that it amounted to direct age discrimination. Employers should note that it was acknowledged by the judge that effectively managing staff and ensuring succession planning were legitimate aims of a business. It is however clear that this planning should not simply be targeted at those nearing retirement age, particularly when an individual has given no indication that they plan to retire any time soon.

In order to ensure succession planning is not directly or indirectly age discrimination, employers should consider all employees’ future plans. Employers should avoid specifically targeting those nearing retirement age, and instead have ongoing discussions in relation to all employees. This can easily form part of an organisation’s annual appraisal process, and will provide an organisation with an overview of where its staffing requirements may be in the short, medium and long-term.

Contact Tom Swann or a member of the employment law team for advice about staff succession planning, telephone 01227 763939.