Age concern

29 September 2011

The common commencement date of 1 October sees the introduction of two pieces of legislation which have, in various forms, been hanging over the heads of employers – and facilities practitioners – for some time.
The impact of the abolition of the default retirement age (DRA) – finally making it illegal to force someone to retire on the grounds of age – and the Agency Workers Regulations (AWR), which grant equal rights to temporary workers employed through employment agencies after 12 weeks, will be most keenly felt in HR and legal departments. But as is so often the case, FM professionals will also need to be aware of the key points to ensure the new regulations are implemented 
in practice.

The abolition of the DRA, in particular, could have implications for FM, both in how they manage their internal and contracted workforces and for the wider facilities set-up. Ali Moran, HR consultant at Workplace Law, points out that the removal of an automatic age at which people can be made to retire could make workforce planning more difficult. “But it is possible when you have an annual review or one-to-one meeting to enquire of everybody what their future plans are, and whether they see themselves staying in the same job. That would then hopefully allow a person to say they might be thinking of retiring,” she says.

Asking the question
For Claire-Jayne Howden, 
HR manager at soft FM service provider Servest, the biggest issue will be training managers to have a different kind of conversation with those employees who are approaching an age at which they might be thinking of retirement, particularly if their ability to do the job has diminished. “You can talk about different jobs they could potentially do or about reducing hours and that may be something the employee really wants to look into,” she adds. “But it is uncomfortable when you get an employee who says they want to stay exactly as they are and they don’t want to have a conversation about their performance because they’ve worked there for 30 years.”

The critical aspect here is effective performance management, says Euan Smith, employment partner in the FM practice of McGrigor’s law firm. “It should not be assumed that workers will not be able to cope with the demands of a physical role simply because of their age,” he says. “If physical capability is an integral part of a role, then the performance assessment for that role should recognise that, and all workers fulfilling that role should be assessed to the same standards. In that way, any worker, of whatever age, who is incapable of fulfilling the physical aspects of the role may be replaced.”

For facilities managers, there’s also the added dimension of managing staff provided through an external supplier, where the in-house FM team may pick up on substandard work or cases where it is becoming increasingly apparent that an older individual may be struggling, especially in more physical areas such as catering or cleaning.

Right to refuse
“Where a company purchases services from an FM supplier they often have the right to say they don’t want that person any more and they need to find a replacement,” says Moran. “Providing that the supplier has done some due diligence in terms of making sure there’s no unlawfulness behind that request – if the client didn’t like the person because they were getting old that would be a risky strategy – and if they can prove the person’s capabilities have diminished, the FM supplier is then tasked with finding a replacement.” In this case service providers could look to deploy the individual in a less demanding role, she says, or there could be grounds for dismissal.

Contract focus

Denham Bell, a partner at commercial law firm Mundays, suggests now would be a good time to revisit those supplier contracts to ensure they do include the right to refuse to have someone provided by a third party perform a certain role.

“There should always be an awareness of the contract that you’ve entered into and in reality the law is so fast changing in this day and age that there should be regular reviews of contracts anyway,” he says. “We’ve often had companies saying they have contracts and they’ve never had 
to rely on them but now they need to, and they’re often four 
or five years old and the world has moved on.”

An older workforce can also have implications for the wider workplace, particularly with the broader definition of disability introduced under the 2010 Equality Act. “There’s a lot FMs can do to think this through for themselves,” suggests Andrew Mawson, managing director of Advanced Workplace Associates. “You’d expect as people get older that eyesight becomes a bigger issue, posture and musculoskeletal injuries are probably a greater concern and maybe there’s a 
need to provide greater health support in the workplace. Even people’s hearing can drift off 
after the age of about 55.”

“If a provision, criterion or practice within the workplace places older people at a substantial disadvantage when compared to younger people, then it may be necessary to remove the challenging element,” says Stuart Neilson, employment partner at McGrigors. “Whether or not change is necessary will depend on whether the challenging element is justified. It will only be justified if it is a proportionate way of achieving a legitimate business objective.”

On the bright side
But while the abolition of the DRA will create headaches for those in FM, there is a more positive view, with in-house and external teams able to benefit from individuals’ skills and experiences for longer. “It’s not just about age; it’s about competency and fitness to work,” says Lionel Prodgers, director of Agents4FM. “Companies will always want to employ experienced workers and there are examples I know where people have worked well beyond retirement age, regardless of any new legislation. Their attributes, knowledge and skills are rated.”
The AWR, meanwhile, will have an impact on FM practitioners who source labour such as cleaners or security staff through employment agencies, rather than through service providers which directly employ their own staff. The most important element is to ensure that staff who have been with the organisation for more than 12 weeks receive equal rates of pay, but this also extends to equal access to facilities within the workplace, from day one.

“The AWR requires that all agency workers have access to collective facilities and amenities to the same extent as a comparable permanent worker would have,” says Neilson at McGrigors. “This includes access to a workplace canteen; crèche; on-site toilets or shower facilities; prayer room; mother-and-baby room; on-site parking; on-site gym and transport services. But it will not include car allowances or company cars, access to off-site facilities such as subsidised gym membership off-site or off-site 
car parking.”

It does not, however, put agency workers at an advantage to permanent employees, so if there is a limited amount of car-parking space, for example, they will have to fit in with the existing eligibility criteria.

“Managers will have to pay far more attention to who is employed and doing what because there is no getting around the fact that those people who come in under an agency and work there for 12 weeks are entitled to have the same remuneration in terms 
of cash benefits,” adds Bell.
“A example of that is if you have someone with a permanent workforce and they offer childcare vouchers, they will have to offer those vouchers to agency workers who have been there for 12 weeks. I don’t think many people have realised the extent of the impact of this.”

Time to reflect
Inevitably, FM will have to assess its use of such labour in the light of the new regulations, as well as putting in place measures to ensure they are not accidentally caught out. “If companies are using an agency directly and are always getting the same people they will need to start thinking about whether they want to start rotating people once they get to the 12-week point,” suggests Moran at Workplace Law. “They need to balance whether it’s going to cost any extra once they’ve 
hit that trigger point against the cost of changing the team every 10 weeks.”
The starting point should be to assess how many agency workers FM uses, she adds, and to establish how many of these could potentially end up working for longer than a 12-week stint, she adds, before evaluating the likely impact on workplace facilities, costs and any added administrative burden.

Yet despite the additional requirements, the AWR should not pose too much of a problem for responsible employers, says Ian Fielder, chief executive of the BIFM. “If you take on temporary staff and you’re going to employ them longer than 12 weeks, why wouldn’t you give them access 
to your cafeteria or car parking?” 
he asks.

“Other than changing their instructions to their employment agencies to give them details of how people can apply for jobs advertised internally – and there will need to be a communication shift to make sure that information is available not only to the agency but also to the temporary worker – this is probably only an issue for those who abuse the system. I would see this as good news.”

Nick Martindale is a freelance business journalist, editor and copywriter working in the FM sector