In recent years, we have seen a significant change in the profile of the workforce: more and more retirees are choosing to return to the labour market or are finding it necessary to do so. Employers need to be aware of the issues and questions raised by an aging workforce. Note that the Charter of Human Rights and Freedoms (the “Charter”) provides that an employer may make distinctions based on age “as provided by law”. The Charter also governs various aspects of the contractual employment relationship, such as hiring and termination.

At the hiring stage, an employer may not, as a rule, hold an applicant’s age against them. This means that pre-employment tests to narrow the field of candidates must not discriminate on the basis of age, unless that distinction is necessary for the purposes of the employment. For example, only individuals to whom the employer is considering offering a position must be asked to take a test.

This new workforce is making it necessary to review the way the employment relationship is defined. Would a fixed-term contract be more appropriate? Should an indeterminate contract be considered, or should an individual be given consultant status and perhaps paid more, but not given benefits?

Recruiting older persons means that a number of specific considerations must be taken into account if the employment is terminated. Age should not be a criterion in deciding to terminate. On the question of the appropriate notice period, the circumstances in which the individual was hired and the nature of the employment must be taken into account—but how will the question of whether the person will be able to find other employment be addressed?