When the Beatles sang about turning 64 and pondering who would care for them in their old age – they were still young men, and would not reach their 60s for another four decades. Today, surviving Beatles Paul McCartney and Ringo Starr are still hard at work recording and touring into their 70s, and they are far from alone. Since the end of mandatory retirement, Canadians are working longer than ever before, and in many cases working well past what was previously considered ‘retirement age.’

There are, though, a series of questions employers can face when dealing with older workers in the job market. How should older workers best be accommodated? What are some of the benefits and challenges that older workers can present in the workplace?  Lastly, what are some of the legal issues involved in terminating older workers, and doing so without violating any human rights legislation?

Encore Jobs

Not only are Canadians working past retirement age – many are pursuing ‘encore careers’ after their initial working life comes to an end. Older workers are increasingly pursuing career changes or launching their own businesses rather than retiring. The Huffington Post shared the story of Rick and Wendy Walleigh who had worked most of their lives in the tech-industry. Although they were ready for a change as they approached retirement age, they did not want to stop working. As are many other baby boomers today, Rick and Wendy decided to pursue an ‘encore career’. In addition to maintaining financial security as life expectancies continue to increase, older workers also want to continue to fill their time with meaningful and exciting work. The couple pursued their ‘encore career’ in in Africa where they volunteered and built competitive farms, businesses, and industries to help the poor escape poverty.

With no mandatory retirement age, the number of Canadians in the Walleighs’ situation is rising steadily – 20 per cent of Canada’s workforce is over the age of 55, an increase of over 1 million Canadians from 2006. When Stats Can followed a group of workers who left their jobs at the traditional ‘retirement age’ – between 50 and 64, almost two-thirds of them returned to the workforce within the next decade. The harsher reality though is that this is not always by choice. With life expectancy increasing and economic struggles eating away at savings, many Canadians are forced to re-enter the workplace simply to survive.

Older workers can make invaluable contributions to an organization, but often present with unique needs that may not be best addressed by umbrella workplace policies. For example, they may be facing medical issues which require special attention, but they are still capable of contributing positively to the organization. Employers may need to consider requests for accommodation, or even simply granting time off for medical appointments, without prejudicing the employee based on their age or medical issues. Strong Employee Assistance Programs (EAPs) can help improve and maintain workers’ overall health, potentially decreasing the number of health-related issues that may affect the workplace later on.

Time To Say Goodbye

Of course the greatest challenge employers face when dealing with older workers is how to carefully and respectfully end the employment relationship. The Ontario Human Rights Code specifically prohibits discrimination in employment based on age, and this includes terminating a worker based on their advanced age, or any associated medical issues. It is not discriminatory to terminate an older worker, but it is discriminatory to terminate them because they are older. The distinction may be a fine one, but it is key to avoiding potential human rights claims.

When Courts evaluate the termination of an older employee, the reasonable notice period will be assessed on four established factors, including: the employee’s age at the time of termination, length of employment, character of employment, and likelihood of finding a comparable position. For older workers, their age and years of service, combined with the natural difficulty they might have in finding new employment, can lead to generous settlements.

While there is a generally-accepted threshold of 24 months’ notice awarded by the Courts, that is not always the case. In Hussain v Suzuki, a 65-year-old employee who had been employed for 36 years was ruled to have a 1 per cent chance of finding new employment at his age, and with his unique expertise. Analyzing the circumstances, the Court surpassed the threshold and awarded the employee 26 months of notice. In the more recent case of Filiatrault v. Tri-County Welding Supplies Ltd., which awarded two senior employees in their 80s with 18-months notice period, the Court acknowledged that the structure of reasonable notice is likely to change with an increasing number of older workers. In his decision, Justice Allen said, “The durations of employment that have attracted higher notice periods have rarely if at all been as great as 40 years. This will likely be an increasing trend with the statutory end to retirement at age 65 (emphasis added).”

What You Need to Know

As the number of older workers in Canada continues to rise, it is important to regard them as fully functional and productive members of the work force, while also acknowledging their unique needs and perspective. An employee who may require accommodations in part due to their age should still be fully integrated into the organization, and may offer valuable knowledge and resources based on their experience that other employees do not have.

It is discriminatory to dismiss an older worker simply based on their age. However, if the decision to depart the company is mutual, then arranging a smooth transition out of the workforce at the employee’s request could make the situation easier for both parties. For older workers looking to remain involved in the business in a smaller capacity and with reduced hours, transitioning them into a subject matter expert role or brand ambassador may be the best fit. In any event, keeping older workers engaged at a level they desire can help prevent any future claims of discrimination based on age.

As always, MaxPeoplePerform and Rodney Employment Law are here to help.  If you would like assistance in smoothly transitioning older employees in your workplace, or if you are an older worker looking to make that transition, or feel you may be subject to discrimination based on age, we can assist you.  Contact us today for more information.

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