Employers need to think through the implications of working with no retirement age. In theory any centenarian, or even super-centenarian (!) will be able to continue working indefinitely and forced retirement will not be an option. Lack of capability may be.
Care with capability
Tests of capability for older employees will have to meet the same criteria as those for younger employees. Comparisons seem most likely to cause difficulty when the capability is ill-health related. There may be a temptation to be less tolerant of absence in a 70 year old than in a 40 year old, but that would be age discrimination. A review of your capability procedures and practice would be wise so as to make sure the procedures can work well at both ends of the age spectrum. See notes below about training, for example.
Disabilities
Inevitably the likelihood of disability increases with age. The forward prognosis may be helpful here. What is reasonable by way of an adjustment could be relevant. So investment in training and equipment that might be reasonable for a 40 year old (who is losing their hearing, for example) might not be so reasonable for a 70 year old. Although “reasonable”, as always, might be compared to defining the length of a piece of string.
Performance
The key here will be whether or not you already tackle under-performing employees effectively. If you do not then it will be more difficult to tackle under-performance in older employees. Here, it is how under-performance is managed in practice that will matter. The procedures should be no different.
Redundancy
Remember older employees are entitled to redundancy payments – and selection criteria must not be age-related. Last in, first out, can only be used as a last resort.
Training
You could be reluctant to offer training to older employees. If you are then two issues arise. Can you be objectively sure that the older employee is less able to respond to the training? Is the investment in training going to be justified given that the time for the return on the investment will be shorter?
In relation to the first, it may be that a younger employee starts from a firmer platform, for example in technology related matters. But care will be needed with assumptions. Some silver-surfers may be better researchers than their younger counterparts.
The second issue may need care too. For example, it is not unusual for blue-chip companies to invest substantially in new graduates, knowing many will leave after two years. Comparisons will be important.
Compromise
It is possible for employees to sign away their rights to bring unfair dismissal claims by means of a compromise agreement. This provides an option where the employer wishes to dismiss the employee and the employee wishes to remain in employment. Any negotiations will need to be “without prejudice” and the employee has to receive legal advice – for which the employer normally pays.