Mediating retirement

The removal of the default retirement age (DRA) will present employers with new problems in relation to their older workforce. As usual, the Government does not set out how these problems can be overcome. ACAS (Advisory, Conciliation and Arbitration Service) does well in its advisory booklet (“Working without the Default Retirement Age”) to suggest how employers can approach working without the DRA. Even that, however, begs some questions and poses some problems which the writer suggests can be met using mediation.

The law change

A quick reminder about what is going to happen. The last date employees can be compulsorily retired using the DRA is 30 September 2011. That means that the last day an employer can provide the six months’ notice required by the DRA provisions is 30 March 2011.

It seems that employers can still use the DRA between 30 March and before 6 April 2011, but this will require use of the short notice provision which will give rise to compensation claims – up to eight weeks’ wages. The employers will not be able to issue new notifications of retirement using the DRA after 6 April 2011. From 1 October 2011, no employee can be compulsorily retired by an employer because they have reached the age of 65, unless that retirement can be objectively justified.

The future

Employers will want to do one or both of two things:

• attempt to objectively justify 65 as a retirement age; and/or
• find out what an employee who is approaching the age of 65 wants to do.

Both will have to be done while minimising the risk of an age discrimination claim.

The ACAS guidance points out how difficult it will be to set up an employer-justified retirement age. An employer will need to objectively support a decision that the retirement age they propose is a proportionate means of achieving a legitimate aim. This will need not only research but consultation.

ACAS also suggests that workplace discussions “provide an opportunity for you to discuss your future work requirements and how these impact on the employee” (booklet, p 6).

Communication: a “good thing”?

The guidance suggests that there are areas that should be talked about, (such as performance, training needs, the employer’s future plans, the employee’s aims and so on). It is suggested employees have a right to be treated fairly “and should participate in these discussions in as open and frank manner as they possibly can”. Then the inevitable problem is highlighted – the employer cannot ask questions which could be seen as discriminatory.

The difficulty

And that is a major difficulty. How does an employer have an open and frank discussion about its needs with an employee while trying to find out their aims and aspirations – particularly relating to how long they plan to continue working – without asking a question which could be seen as potentially discriminatory?

We all know that, in retrospect, taken out of context and set against a background of allegations, almost any innocuous wording, or slip of the tongue, can be shown to have a discriminatory content. Trying to stick to a formula of words can make these kind of discussions so anodyne that they fail to achieve their purpose and leave parties no wiser at the end of a meeting than they were at the start.

The proposed solution

The answer may lie in the skills used by a mediator in a workplace mediation.

Mediation is “the intervention into a dispute or negotiation of an acceptable, impartial, neutral third party who has no decision making authority. The object of this intervention is to assist the parties in voluntarily reaching an acceptable resolution of issues in dispute” (Masters & Albright, Conflict Resolution in the Workplace, Amacon, 2002).

Surely here there is neither dispute nor conflict, and so using a mediation process is misplaced? Not so. In the workplace setting, conflicts arise where persons who are interdependent have conflicting needs. Where you have an employer who is having difficulty coming to terms with the removal of the retirement age and an employee who wants to continue working, you have a conflict whether this has turned into a dispute or not. Thinking that there is no conflict is to misunderstand the nature of conflict and how it arises.

In helping parties solve their conflict, a mediator will reframe negative views or thoughts and try to help parties to be more future focused. They also open up ways for parties to move from their positions to their needs. Importantly, mediation is entirely confidential and without prejudice, so parties can say what they want without fear of it being thrown back at them at a later date. Of course this isn’t a licence to be prejudiced; it merely allows a frank and open conversation to take place without trips and slips being pounced on and punished later.

The workplace mediation process can also be transformative. It has an atmosphere where parties develop a deeper understanding of each other. The mediator is entirely impartial and at the end of the mediation, the parties will come up with a plan to regulate their future relationship. This plan will be based on the needs of the parties involved.

A scenario

Take a situation where HR is approached by a line manager who has an employee coming up to age 65. The company has not yet set a justified retirement age and the line manager, who is not known for their subtlety, has certain views on older employees which may land the company in hot water if they were to be involved in a workplace discussion. HR has no clear idea of what the older employee wishes to do and therefore can’t gauge whether HR should have the workplace discussion or not. HR is therefore faced with a decision:

• allow the line manager to be involved in a workplace discussion and simply accept the risk that politically incorrect language will be punished; or
• carve the line manager out of the process and run the risk that what is decided does not actually reflect the needs of the business going forward.

Offering the line manager and the older employee a “without prejudice” platform on which to discuss their needs (or the needs of the business and the needs of the employee) in a way which focuses on the future is an extremely useful solution. The line manager may need some initial coaching on what to take into mediation. However, the mediation process, where the mediator meets first with the parties and tries to reframe negative comments, and then the parties meet with each other to discuss directly their needs going forward, should reduce the risk of saying the wrong thing, or asking the wrong question, to an acceptable minimum and allow parties to genuinely focus on what they need going forward.

As the process is collaborative, this increases the prospects of parties reaching a solution which works, rather than the employer essentially imposing a decision on the employee after a stilted workplace discussion.

Any pitfalls?

Could an older employee complain that he or she is being discriminated against because they have been offered this platform to have a discussion? In the writer’s opinion, no. Mediation is always voluntary. In workplace mediation there may be an element of compulsion – in that the employer may make it clear that they expect an employee to attend mediation – but ultimately, the choice lies with the employee. Equally, simply offering mediation as a means to discuss future aims does not appear to put the older employee at a disadvantage (Equality Act 2010, s 19). It is also arguable that the offering of mediation is not, insofar as the older employee is concerned, less favourable treatment (2010 Act, s 13(1)). In any event, it is again arguable that offering mediation to the older employee is a proportionate means of achieving a legitimate aim, which is to ascertain what the intentions of an older employee are (s 13(2); s 19(2)(d)).

A younger employee may complain that they are not being afforded the platform of mediation to discuss their own aims. Of course, this can be easily dealt with by offering mediation as an addition to existing processes such as grievance procedures, performance reviews or career development discussions.

Isn’t this an expensive way to have a chat? The cost of a mediation session has to be compared to the hidden cost of conflict within an organisation – demotivated employees at loggerheads providing substandard products or service and missing opportunities in the marketplace; HR costs; lawyers’ fees; and of course, uncapped awards at tribunal for discrimination claims.

Greater understanding

Mediation offers a possible “without prejudice” platform where employees and their managers can, in an open and honest way, discuss their needs going forward and minimise the risk that an inopportune question or phrase will expose the employer to claims. The process may also help transform those involved and give them a clearer understanding of both the needs of the company and the needs of the employee. By doing this, it will promote the value and worth of older employees as they will be seen as colleagues whose needs are understood and respected, rather than as a bear trap disguised in human clothing.