In BC, the Premier’s Council on Aging and Seniors’ Issues has recommended the abolishment of mandatory retirement. If put into effect, this recommendation would see the removal of the portions of the BC Human Rights Code preventing persons aged 65 or older from complaining of age discrimination. These provisions presently allow employers to make employment decisions based on age for individuals aged 65 or older.
Impact of abolishing mandatory retirement
The plan to eliminate those provisions reflects a nation-wide trend toward protecting older employees from discriminatory treatment. The likely impact of abolishing mandatory retirement will be a clash between the employer’s traditional discretion to terminate and the employee’s right not to be subjected to age-based discrimination.
The result may be a flood of discrimination complaints when employers terminate older employees. Every older terminated employee may have the basis for a claim that their employment was ended for discriminatory reasons. This can cause serious managerial dilemmas.
The employer will face the challenge of demonstrating the termination was in no way tainted by a discriminatory attitude toward older workers, who are often non-traditional employees. This is no small task because any degree of discrimination is sufficient to taint the decision to terminate. The discriminatory reason need not be the sole, or even primary, reason for the termination.
A termination situation
This termination situation currently applies to workers under the age of 65. An example of this situation was played out in a recent B.C. Human Rights Tribunal case. Buchanan worked for a company called WMC Management for 28 years and was nearing age 60. She was told her employer would no longer require her services and was provided with 10 months’ working notice of termination.
Buchanan filed a human rights complaint alleging discrimination on the basis of her age. Her employer took the position that the termination was motivated by cost concerns and was unrelated to her age.
The Human Rights Tribunal upheld Buchanan’s complaint. While the Tribunal accepted the employer’s argument that it was facing increasing overhead costs, it questioned why the employer had chosen Buchanan as the sole employee to terminate.
The Tribunal agreed with Buchanan’s evidence that her employer had been asking about her retirement plans and had told her it could not continue her employment indefinitely. This pointed to the conclusion that her age played a role in the employer’s selection of her as the employee to terminate.
The employer’s witnesses stressed that Buchanan’s age was not a factor in their decision to terminate her employment. The witnesses testified that they had considered all alternatives and had concluded Buchanan’s job was the only one they could eliminate. But the employer failed to convince the Tribunal that it had considered whether Buchanan could have performed any other duties. The employer also failed to convince the Tribunal that other employees’ duties could not be re-distributed (as it was planning to do with Buchanan’s).
Ultimately, the employer failed to convince the Tribunal that age was not a factor in its decision to terminate Buchanan’s employment. In order to have done so, the employer would have had to put forward comprehensive evidence of an objective analysis of its workplace. That evidence would have to have led to the conclusion that, under the circumstances, Buchanan was the only person who could be terminated.
Employers: adjust your termination processes
Depending on which side of the fence you sit, this decision is either a significant win for older workers or just another example of government red tape for employers. One thing, however, is certain. Once the Code is amended, employers are going to be facing this battle far more often and had better be prepared to put forward extensive evidence to prove that discrimination was not a factor in their decision-making process. Now is the time for employers to start altering the internal processes by which termination decisions are made.
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practising exclusively in the area of labour and employment law. For more information about his practice, visit www.pushormitchell.com. If you have a labour or employment question for him to answer in a future “Legal Ease”, e-mail him at firstname.lastname@example.org. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.