We read a lot in the media about older people and the workforce: increasing numbers of older people are in the workforce because people are living longer (not just in the UK but worldwide – by 2030, 1 in 6 people in the world will be aged 60 or over); and increasing numbers of older people are leaving the workforce (economic inactivity in the UK has increased significantly since the Covid pandemic and a significant number of those dropping out of work were aged over 50).
There’s also plenty of information about ill health and the workplace: the number of people out of the UK labour market because of long-term sickness has been rising in recent years (since the start of the pandemic, the number of people out of work because of long-term sickness rose by 363,000 and more than half of these were aged 50 - 64) and rates of sickness absence in 2022 were the highest since 2004, an estimated 185.6 million working days.
Being older doesn’t necessarily mean you will experience more ill health than younger colleagues, but statistics show that ill health can be an increasing issue for older workers. It is unlawful age discrimination to force a worker to retire at a certain age, unless this can be “objectively justified” (which can be difficult) and many people want, or need, to work beyond the age at which they will receive their state pension. Looking ahead, it seems likely that employers will need to become increasingly adept at managing health-related issues within their steadily ageing workforce. Against that background, we share our thoughts on areas for reducing the scope for ill health related employment disputes with older workers:
1. Train managers on how to support employees with ill health
Put “wellness at work” into a search engine and you will find no end of websites providing advice about how to improve wellness at work. You will also, however, find useful information from organisations like Mind and the CIPD. Both of these organisations stress the importance of training and supporting managers when it comes to improving wellness and health at work.
A key part of being a manager is dealing with people and, inevitably, these people will, at times, become unwell. It is important that managers are given suitable training and guidance on dealing with these matters, including specific issues which may arise with older people who are unwell. For example, assumptions about older workers who are ill, such as whether they are likely to retire soon or have an appetite for promotion, could constitute unlawful age discrimination. Additionally, managers may fail to consider that workers are older, and that this may have an impact on their health and the work they are doing. Instead of simply managing sickness absence, it’s important to consider how best to support older workers, including the work they do and/or how and where they do it.
Going forward, we may well see manager training in ill health become as widespread as other forms of training, such as on topics like diversity and inclusion. Larger employers may also find it helpful to implement more specialised policies relating to specific illnesses such as cancer.
2. Make reasonable adjustments and offer flexibility
Making “reasonable adjustments” to employees’ roles is a legal duty which arises in the Equality Act 2010 with respect to employees who are considered disabled within the meaning of this Act. The duty, which is unique to the protected characteristic of disability, arises where a disabled employee is placed at a substantial disadvantage by a provision, criterion or practice (or physical feature) at work.
The legal duty does not apply, therefore, to older workers unless they have a physical or mental impairment which means they are legally “disabled”. The government previously consulted on introducing a right to request workplace modifications on health grounds, which would have applied to employees returning from four weeks or more of sick leave who were not disabled (and therefore not covered by the duty to make reasonable adjustments discussed above). It ultimately decided against implementing this, but it is possible that a future government could introduce a similar right as economic pressure to keep older employees in the workplace builds. In practice, reasonable adjustments is a common area of legal dispute and employers are often on safer ground if they focus on what adjustments can be accommodated within the business rather than whether the employee qualifies as disabled.
3. Use occupational health services
Very few employers, even larger companies, have their own occupational health (OH) services. The range of private options available can be baffling and, of course, their services can be expensive. Although experiences of OH services can be mixed, they can still be a useful tool for employers to use with older workers who are experiencing health issues which either keep them off work or could affect their ability to continue doing their original job. It helps to make sure that you adopt a tailored approach to the referrals you make to OH: don’t always use the same set of questions for all employee referrals. In particular, it is usually inadvisable to ask the OH practitioner whether they think the employee is disabled under the Equality Act. Ultimately, whether someone is disabled is a decision for an employment tribunal, not an OH practitioner, and it can be unhelpful for this to be included in a report. In any event, if an employee has some kind of significant health impairment it is usually sensible to assume that they are likely to be “legally” disabled and use the OH referral to gather useful information about their health, prognosis and any adjustments which may be needed at work.
In the Spring Budget this year, the Government announced additional initiatives to improve access to OH support for employers. It plans to expand a pilot scheme which is aimed at helping small and medium-sized businesses with the cost of purchasing OH services and will be consulting on increasing OH provision by UK employers.
4. Don’t get caught out when offering health-related benefits
There is no legal requirement for employers to provide any type of health-related benefits to workers, but employers are increasingly doing so. These include private medical insurance, access to private GP services as well as permanent health insurance (PHI) benefits which may provide income when a worker is on long-term sickness absence. Obviously, these types of schemes can benefit all workers, but they may be of particular use to older workers who experience health issues at a time of longer NHS waiting lists and difficulty getting timely GP appointments.
Employers should be wary of potential age discrimination issues arising from the terms of health-related insurance and benefits. Since the default retirement age was abolished, the Equality Act 2010 includes a limited exception which says that it isn’t age discrimination to cease arrangements for insurance benefits (including PHI) when the worker reaches state pension age (which is now 66) and it is not age discrimination to provide these schemes only to workers who have not reached this age. However, employers would be well advised to check their policies to see if the end date is below 66 and, if so, consider changing the policy to avoid the risk of age discrimination claims (although this can also lead to practical issues if the proposed new scheme will not admit workers who are already absent from work). It is always advisable to clarify the limits of any contractual duty on the employer by stating in the employment contract that the employee’s eligibility for PHI benefits is subject to the terms of the applicable insurance policy.
Age discrimination is a complex area of law, particularly in relation to this type of health insurance benefit where employers have sought to justify potentially discriminatory policies, for example, the ending of cover before the applicable state pension age. Some tribunal cases have refused to accept costs as a justification for schemes that end before state pension age and a tribunal is likely to expect an employer to shop around to try to find alternative cover that does not discriminate based on age.
Many employers seek to mitigate the issue of potential age discrimination claims arising from PHI schemes by offering a flexible benefits package; for example, where workers are given a “flex fund” to purchase a package of benefits of their choice from a range on offer. However, even these schemes can raise legal issues if, for example, the benefits cannot be purchased at the same price irrespective of age, and employers should always take advice.
5. Remember health and safety
Health and safety duties may have been regarded as low importance in many workplace settings in previous years, but the Covid pandemic changed all that. Will the ageing workforce keep this area of compliance high on the agenda?
Employers have a legal duty of care to do what is reasonably practicable to ensure the health and safety of their employees at work which includes assessing and controlling risks within the workplace. The same duty applies to all employees whatever their age, and there is (currently) no legal requirement to carry out a separate risk assessment for workers over a certain age. That said, while employers should not assume that certain jobs are too demanding for older workers, it is wise to consider age as a potentially relevant factor. For example, a significant percentage of work absences are caused by problems connected with the back or neck, so it is sensible to arrange for reasonably regular desk assessments, particularly as employees get older.
In summary, while health issues are not limited to older workers, it is likely that ill health at work will become a more common occurrence as the workforce ages. Employers will need to give this issue increasing attention if they want to avoid liability but also if they want to support older workers to remain in the workplace and have successful and fulfilling careers.
This article is the second in our series of articles focusing on older workers. You can read the first article on how employers can make their workplaces appeal to older workers here and the third on menopause at work here.