It seems performance regimes are being misused in order to bypass age discrimination laws and to put the ‘oldies’ out to pasture.
Under the Human Rights Act 1993, it is unlawful to discriminate on the basis of age. The Employment Relations Act 2000 also prohibits age discrimination in relation to employment, by specifying certain types of conduct that will be discriminatory if done on the grounds of age, such as dismissal, detrimental treatment and refusal to provide the same terms / conditions of employment as other employees.
But despite this legislation, age discrimination is quickly becoming the most common form of discrimination and the decision of McAlister v Air New Zealand Ltd 2009 is just one of many cases to illustrate this. In what has been labelled a “landmark age discrimination decision” (NZ Herald, 28 July 2009), the Supreme Court found Air New Zealand had discriminated against Mr McAlister on the grounds of age, when they told the 60 year old he was too old to be a pilot-in-command. Air New Zealand is now facing a multimillion-dollar law suit for unlawfully demoting eight former captains when they turned 60; the case is currently awaiting trial.
In New Zealand, compulsory retirement is direct age discrimination and is therefore also unlawful. It has been said that “the absence of a compulsory retirement age leaves employers with a quandary” and “employers are left in a position where they have no option but to actively performance-manage employees” (Business Day, 29 March 2011). The author of this article tends to be suggesting that staff who are ‘past their used-by date’ should be performance-managed out in order to “attract young people” who will apparently “innovate and evolve the business”. Performance regimes should not be misused in order to rid of older employees; employers must manage performance concerns for older staff in the same way as they do for all other employees.
A decline in performance is not necessarily an age-related issue – there may be many reasons for an employee’s performance to drop, at any age, for example, the tools for performing their job may have changed without sufficient training or there may be external factors which are affecting performance. In the March 2011 article, the author states that “inevitably, most of us slow down, and become less adaptable to new situations and technology”. It is important to note that one of the requirements of managing performance is to provide assistant to help the employee improve – and this may be in the form of ‘technology training’. It is also important to note that the cost of re-training an employee will also be substantially lower than that of a retirement package.
The assumptions behind age discrimination are largely false – older worker are not less adaptable. In fact, older workers have a lot to offer: they show more dedication to the workplace, by providing longer and more reliable service to their employees; have less time off; tend to be more accurate and make better decisions in the first instance; have fewer accidents; and often possess rare and complex intellectual capital. Sure, human brains slow down as we age, but they also amass experience and wisdom.
Age discrimination is unlawful and therefore it is discriminatory to performance-manage an employee out merely because they reach a certain age. As George Curtis, an American writer, once said, “age is a matter of feeling, not of years” – an adage that all people should adhere too.