In the Supreme Court of Canada’s most recent family law decision, Michel v. Graydon, 2020 SCC 24, the Court settles a long-standing question about whether child support can be recalculated retroactively once a child has reached adulthood. The short answer is that child support is the right of the child and, with that fundamental tenant […]read more
Performance Management of Older Workers
Given the increasing number of older employees who are choosing to remain in the workplace and the (near) elimination of mandatory retirement, it is increasingly important for employers to ensure that they are engaging in appropriate performance management of older workers. However, employers must make sure that its performance management is carried out in a way that does not trigger liability for age discrimination. This involves not only ensuring that performance standards are not based on discriminatory criteria, but also ensuring that the process is not based on stereotypes.
While many employers likely know that subjecting an older worker’s performance to a higher level of scrutiny than younger workers can raise human rights considerations, it is also important to keep in mind that a failure to performance manage an older worker due to a perception that it is not worthwhile because they will likely retire soon can also be discriminatory.
Riddell v IBM Canada, 2009 HRTO 1454 provides a good example of an employer’s performance management of an older worker. In that case, a 59 year old worker argued that his work was subjected to excessive and differential scrutiny, and that the performance objectives he was required to meet were arbitrary and different than younger employees. He also argued that he was not given proper training or assistance required to enable him to meet the performance objectives.
In response, the employer put forward evidence that the performance standards applied to Riddell were based on company-wide standards that had been applied to employees consistently over a number of years.
The Human Rights Tribunal outlined the governing principles as follows:
The Code does not prohibit an employer from applying its performance management policies to older workers. This principle is succinctly stated in the Commission’s Policy on Age Related Discrimination:
Of course, employers are not precluded from terminating older workers, using the same performance management criteria as for any other worker, where there are legitimate performance concerns that are based on objective evidence about the employee’s ability to perform the duties of the job.
The Tribunal found that the employer was justified in monitoring Riddell more closely because his performance fell below his peers and his productivity was consistently the lowest on the team. Further, there was no evidence of a connection between his age and the performance management measures that were put in place. Therefore, the Tribunal concluded that the employer had a legitimate business interest in monitoring Riddell’s work and that it had not engaged in discrimination.
This decision emphasizes the importance of having objective performance standards that are applied consistently to employees regardless of their age. However, it is also important for employers to recall that there may be times when an older worker’s performance issues are caused by their age (or an age-related condition). In such circumstances, employers will need to consider whether the duty to accommodate is triggered as accommodation, rather than discipline, may be required.