Discussions about departures could be grounds for human rights complaint
With the demise of mandatory retirement, it was expected employees would decide entirely for themselves when they would retire.
But the issue is a delicate one and a number of factors — employer preference among them — can complicate the matter.
A majority (80 per cent) of working Canadians still plan to set their own retirement date but many retirees (41 per cent) weren’t able to, according to the 2013 RBC Retirement Myths & Realities Poll.
That’s why we need to adjust our expectations when it comes to retirement "norms" and plan for different scenarios, according to Amalia Costa, head of retirement strategies and successful aging at RBC in Toronto.
"If retirement comes unexpectedly, you may have fewer years to accumulate savings or adjust your spending in order to betterfund your retirement. That’s why it’s important to plan ahead and to plan for more than one scenario."
The major reasons for unexpected departures may come as a surprise. While 22 per cent of retirees cited health issues as the impetus for their departure, 41 per cent cited "employer’s request."
While employers are no longer allowed to impose mandatory retirement, some will try to broach the issue with employees in other ways — potentially leaving themselves open to a human rights complaint.
Employer pressure and age discrimination
Some employers still put overt — or more subtle — pressure on older workers to retire, according to Susan Eng, vice-president of advocacy at CARP (Canadian Association for the Fifty-Plus) in Toronto.
"Absolutely, it’s happening," she said. "Underlying this attitude is (the idea) that a person by definition at a given age is determined to be unsuitable and no longer competent to do the job. That’s the prevailing myth — and older workers are paying for that."
Putting pressure on older workers to retire, or otherwise "pushing them out" of the workplace, is actually age discrimination and opens the employer up to a human rights complaint, said Eng.
A number of repercussions
If an employee does make a human rights complaint, an employer may face a number of repercussions, according to Howard Levitt, senior partner at law firm Levitt in Toronto.
"The older worker could first of all get reinstated in the job; second, they’d get damages — and they could get damages not only for their economic losses but damages for violation of their human rights," he said.
"(The employer) could have to post notices in the workplace that they’ve violated the human rights code, they could have human rights inspectors at their doors, they could have an assessment of their protocols and workplaces — it can be pretty interventionist."
Instead of targeting older workers as a cohort and trying to shuffle them toward retirement, employers should rely on performance management systems to make distinctions about high and low performers, said Eng.
"Some may very well not be able to do the job, but then it’s incumbent on the employer to have a proper performance evaluation system," she said.
When trying to incent employees to leave an organization, targeting based on age is a mistake, said Levitt.
"What (employers) cannot do is target employees at traditional ages of retirement, in any respect," he said.
"But the perspective employers are having, happily, is that this is forcing them to do what they should have done a long time ago, which is performance manage employees generally."
What employers are doing now is implementing better performance management across the board, said Levitt.
"So employees are being terminated or induced to leave or given working notice at all ages, because they can’t do it to just the older ones… They have to show that the older ones aren’t being singled out."
But there’s still a caveat when it comes to using performance evaluations to induce workers to leave.
"It can be targeted based on performance… but, on the other hand, they have a duty to accommodate based on disability," said Levitt. "So they have to accommodate that if there are age-related disabilities."
Targeting employees based on performance is not the only option for incenting workers to leave, according to David Whitten, partner at Whitten & Lublin in Toronto.
"What some employers are implementing is self-selecting programs, like a voluntary buyout program… basically, you put forward an opportunity for people to opt in to a defined severance package," he said.
"For older workers, the enticement will be oftentimes a bridge through to their ordinary retirement date."
That’s probably the safest option, because the employer can’t be accused of targeting older workers if employees voluntarily opt in to the program, said Whitten.
"It’s a system where, if it’s done properly, it’s made attractive enough," he said.
"That’s really the best way to do it, because if you go knock on someone’s door and say, ‘Hey, you’re coming up on 65, we’d like you to leave’ — that’s a human rights disaster."
Another — somewhat riskier — option is the so-called "fireside chat" in which an employer sits down and has a conversation about what an employee’s future plans are for herself.
"The fireside chat is really of the greatest utility when you don’t go in with a specific objective as the employer, but you really go in as a fact-finder, to find out what this person’s intentions are," said Whitten.
"If you go in there with an ulterior motive, people are wise to that."
Being open to what the employee wants, avoiding any mention of retirement or age and focusing the discussion more on succession planning is usually the best approach, he said.
"In that situation, yes, the employer can broach the topic with the employee — but it has to be very, very delicate."
Another thing to consider when designing retirement incentives is that for many older workers, health coverage is more important than lump sum severance incentives, said Eng.
But whatever incentive employers choose to offer, the bottom line is it should be respectful of the employee’s dignity, she said.
"In terms of inducing people to leave, I think you just have to provide a dignified and financially sound pathway. I think that’s the key here."
Liz Bernier is a news editor with Canadian HR Reporter. She can be reached firstname.lastname@example.org or visit www.hrreporter.com.