How to handle retirement - as published in Education Today

Simon Henthorn explains how to handle retirement for Education Today

The data

According to latest Government statistics, nearly one in five full time equivalent teachers in state schools are over the age of 50. Now that there is no official retirement age, any school which requires a teacher to retire at a particular age will be discriminating unlawfully on grounds of age, unless it is able to justify its actions. The latest figures show a downward trend in the number of teachers retiring year on year. 15,760 teachers retired in 2014-15, compared to 17,130 in 2013-14 and 20,600 in 2011-12. In addition, the percentage of teachers retiring early due to ill health is falling dramatically, down from 25 per cent in the 1990s to just three percent in 2014-15.

The issue

The combination of an ageing population, no compulsory retirement age and the increasing good health of teachers is contributing an ageing teaching population. Whilst some schools are managing this, others are finding it more challenging. Worryingly, some schools are unwittingly flouting employment laws and could find themselves in an Employment Tribunal facing an age discrimination claim.

It is important to be aware that asking a teacher about their retirement plans can amount to less favourable treatment and result in a claim for direct age discrimination. Repeated questions of this nature could also amount to harassment. Nevertheless, schools clearly need this information for workforce planning purposes. Whilst many teachers will be looking forward to retirement and will be happy to discuss their plans, others may have no intention of retiring. The risk of a discrimination claim will depend on who you are dealing with.

Off the record?

Off the record conversations will not work here. Legislation is in place which prohibits employees from referring to settlement offers made by their employer in subsequent Employment Tribunal claims, if the settlement negotiations fail. However, this only applies to unfair dismissal claims and not discrimination claims. Likewise, “without prejudice” discussions are not the answer as they only work where there is already a dispute with the employee, which is unlikely.

The solution

The best approach is to ensure that you have discussions with all employees, whatever their age, about their future plans and career aspirations, perhaps building this into the annual appraisal process. These discussions can include the question of where they see themselves in the next few years which in turn could result in them talking about their retirement plans. Questions such as “are you planning to retire in the near future?” should be avoided, but if a teacher indicates an intention to retire, there is then no problem in discussing planned retirement dates and any changes to working patterns (such as reduced hours) which the teacher might desire in the lead up to retirement. Schools should ensure that the leadership team is equipped to handle these discussion and receives training on avoiding age discrimination.

An alternative solution?

Schools may be tempted to dismiss teachers on performance grounds, rather than waiting for them to retire. However, they need to be careful. They must not assume that performance has deteriorated with age. They will need evidence. If a teacher has performed at the same level for many years, starting a performance management process as they get older will be a strong indicator that the real reason for taking action is their age. This could make any subsequent dismissal unfair as well as discriminatory.

This article was originally published in Education Today at http://content.yudu.com/web/69r/0Aiy7k/ETDec2016/html/index.html?page=16