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‘Protected Conversations’ and the Ageing Worker
With the abolition of the default retirement age, some employers will be worried about finding out about the retirement plans of staff aged over 60.
ACAS Guidance suggests that employers should hold “workplace discussions” to cover matters including employee’s “future aims and aspirations”, or in other words when they plan to retire. In effect these annual workplace discussions amount to nothing more than staff appraisals and which should be implemented for staff regardless of age to review and monitor performance.
Last week Deputy Prime Minister Nick Clegg announced that ‘protected conversations’ would be introduced under which employers would be able to challenge unproductive staff or advise them to consider retirement without worrying about the threat of legal action.
This sounds very much like the idea of ‘without prejudice’ conversations in negotiations and which cannot then be referred to in legal proceedings. However the rule is not absolute. If you rely on the cloak of a without prejudice conversation to say for example ‘take the money or we’ll sack you’, an employer might find itself in difficulty later. The prudent approach is never to say anything that you would be embarrassed about coming out in the Employment Tribunal.
Likewise Nick Clegg’s ‘protected conversations’ should be approached with the same degree of caution. If an employer uses a protected conversation to say ‘unless you are planning to retire we will have to take steps to address your underperformance’ it should be fairly safe. If the employer says ‘you’re old and past it and if you don’t retire we will sack you’ it might land itself in trouble.
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