Page published on 5th December 2022
Page last modified on 5th December 2022
This article was written by Julie Barrett of Purposive Step Consulting, which provides IP-related business and career consulting. In it she discusses some aspects of employing older people and age-related diversity issues in our workplaces. The article first appeared in the November 2022 CIPA Journal (see here) – or, for non-members of CIPA, here. We are grateful to CIPA for allowing us to reproduce it for a wider IP Inclusive audience.
Julie has been an active supporter of IP Inclusive for some time: she is a member of our Careers in Ideas task force and also serves on the IP Inclusive Advisory Board. She would love to hear from anyone with an interest in establishing an IP Inclusive support network or community for older people in IP. Please feel free to let us know, using the “comment” function below, if her article sparks any thoughts of your own.
Julie writes:
I’ve been an interested reader of all things business ever since acquiring a degree in the subject, way back in the 1970s before I qualified as a Chartered and European Patent Attorney. Since then, so much has changed; but perhaps equally, so much hasn’t. I’m particularly focused, these days, on anything to do with diversity and inclusivity, even when not specifically referring to our intellectual property-related field. It’s always helpful to keep an eye on what people are saying and doing in other fields, so as not to be blinkered within our own, and to avail ourselves of other ideas and ways of doing things that could transfer to our IP-related work lives and organisations.
I was therefore struck by the recently-expressed views of asset management veteran Martin Gilbert [1], who apparently wrote in Financial News: “There has been much progress made in terms of diversity — albeit there is still room for improvement… The mistake some businesses make is to focus only on gender rather than also, for example, ethnicity, sexuality and social background. Instead, the focus should be on inclusivity in the broadest sense, including factors such as age” [my emphasis].
Interestingly, older men are often revered by younger men (less so by women, it appears), whereas women seem to become increasingly overlookable as we age. Many women in senior positions have experienced the situation where they have put forward a suggestion or idea at a senior leaders meeting, which has been dismissed or ignored, only to hear it put forward later in the same meeting by a man, and have it accepted, minuted and actioned! The occurrence of this experience seems to increase as the women become older.
However, I have noticed a reversal of this experience when travelling to some Asian countries, for example, when representing CIPA’s International Liaison Committee in South Korea (2018 and 2019). There, I was astonished to find that the bows of respect were lower for me than for my younger colleagues – even males, and my opinion and advice were repeatedly sought and deferred to. I returned home to inform my family, friends and colleagues that I was very tempted to move to Seoul; I won’t divulge their responses, but I am still in the UK!
Nevertheless, my UK-based experiences and the assumptions mentioned are backed up by university-based research [2]. According to a summary in the Guardian newspaper, the research reveals that “older people are widely mocked, patronised and demonised by the rest of society… and [they are seen] as having lower levels of performance, less ability to learn and being more costly than younger workers” [3]. I challenge some of these assumptions below, but first, I wonder why there is this patronisation, demonisation and poor view of older workers’ value to organisations?
Our ageing workforce
Is one of the reasons that older employees (of any gender) – especially if they are comparable in terms of position, role or rank – may be regarded in some way as a potential threat or obstacle to younger colleagues? There may be an assumption that a younger colleague may not get promotions or dream roles or interesting cases, simply because an older, often more experienced colleague, is “in the way”.
Contrarily, the lived experience of an older worker may be that they are the one side-lined or passed over for interesting and challenging work, rather than the opposite. The assumption in this case is that older people will not want to take on such work because they are now looking for a softer or more comfortable life and a gradual easing into retirement. Whilst some may – and there is in my view nothing wrong with this – not all are; however, for these cases, there may need to be some commensurate rank or benefits adjustments. Older employees’ motivations and intentions should not be assumed, but straightforwardly discussed with their line and/or HR manager(s), so that work (type and load) and benefits can be matched to the current situation.
The latter scenario highlights another issue faced by people as they approach retirement age: relatively few employers seem to provide for a flexible and optionally graduated route to retirement. Some older people may feel that they are expected suddenly to stop work when they reach a certain age, whether they wish to or not; yet others may feel that their employer assumes that they will always be there, very full-time, when they may not want to be. The idea that older workers have fewer family responsibilities (children, if any, are probably grown up), so are more amenable to late working or to work that takes them away from home, may be true in many cases; these workers may now relish the additional freedom and opportunities that they can grab (this was true of me), but this is not universal. Instead, older people may have significant family responsibilities, eg to grandchild care or to a sick partner.
Some older colleagues may themselves become less healthy or have new health and wellbeing issues, which need to be accounted for and supported. Apparently, more than 50% of workers have health issues by the time they are 60 years old [4]. These employees are surely no less deserving of support, healthcare and/or reasonable adjustments than younger colleagues. There seems to be a need to increase or enhance both flexible working and easy access to ongoing health and wellbeing support as workers age. On the other hand, younger workers are not strangers to health issues either: for example, a pre-pandemic Accenture report indicates that 77% of younger workers have experienced mental health challenges, let alone physical ill-health [5].
And workers are ageing! Not only is this an undeniable fact on an individual basis but also, as a body, the working population is aging. Additionally, the number leaving the job market due to retirement/age-related decisions is increasing. For example, over-50s make up 31% of the UK workforce, up nearly 50% from only 21% in the 1990s; and around half a million people in their 50s or older were deemed to have become economically inactive in 4Q21 alone [1] – at that rate, we are talking of attrition in the order of two million per year. This is probably increasing the likelihood of massive skills and labour shortages.
And that’s the point, isn’t it? These older workers generally have vast experience and honed skills – resources that could be tapped to the benefit of firms, companies, and their clients and customers. The argument that much of this experience and skill is out of date or even obsolete seems weak, because most skills can be transferred, especially given appropriate retraining. Yet, according to the CBI, only 35% of employers are willing to hire the over 55s [6].
Recruiting and employing older workers
While, at least in the UK, it is not legal in job advertisements to include requirements, such as: “at least ten years’ experience”, “seeking energetic young people” or “recent graduates”, it is OK (in respect of groups under-represented in the recruiting organisation) to specify that “older applicants are welcome”, for example. Although positive discrimination in favour of such groups is illegal, given two otherwise-identical candidates, you can preferentially choose the one from an under-represented group (but you must have the data to prove that they were otherwise equal). However, the CBI-55/Redefined research found that HR/”people” departments (who generally control the recruitment process in practice) are among the most ageist of all! And while you can and may need to ask for candidates’ dates of birth (for identity checks, etc), why have these in the application papers that are part of the selection process when they could be kept separate?
Assuming an older person is offered a job, there are often difficulties around salary-setting. Employers don’t like to buck the salary hierarchy in their organisations, yet it is often the case that the older recruit will bring additional resources, based on their experience, which deserve higher pay. On the other hand, more often (in my experience) there is a reluctance or embarrassment in taking on a person for a more junior role, who was previously very senior (in rank) and very well paid, for fear they will demand an equivalent salary. But this may not be the case: such recruits may be more realistic and more interested in the job content than in a high level of pay, and may be only too aware that they could be in for a significant cut unless those higher-level skills and knowledge are to be routinely used in the vacant role. Again, it is all about having the conversations, openly and up-front, instead of making assumptions.
A related matter is deciding such a new recruit’s job title. By this, I mean that there may already exist conventional role or rank titles – say, Associate, Senior Associate, Partner, etc, in private practice. But what do you call someone who has been at partner level before but is wanting to take a step back en route to retirement, by doing less business management and more case work? They may balk at being “demoted” to Senior Associate, yet be quite happy with an off-piste title, such as “Consulting Attorney” (I take this example directly from my experience with the enlightened and non-age-discriminatory IP law firm, where I worked aged 59-62 years, following “retirement” from being Director of IP in a multinational pharma company).
Having negotiated these recruitment, salary and job title hurdles, reporting and hierarchy issues can arise: can an older person happily report to a younger person and can that younger person happily line-manage the elder? This situation requires both parties to look beneath their outward appearances, and learn about and appreciate what each brings to the table. The older person must recognise that the final decision is no longer theirs, but this should not stop them from offering advice and suggestions based on their accumulated experience and knowledge. On the other side of the table, if the young manager has any sense, they will listen to this useful input, and benefit from it – not just for themselves but also for their firm and clients – then make their decision and take responsibility for it.
Other stereotypical assumptions, like: “you can’t teach an old dog new tricks”; “older people don’t understand tech/IT/science”; etc must also be questioned. It is true that many older people struggle with some aspects of social media and the like, but many younger people struggle with tech, science and office-type IT, too – it is why firms employ or outsource to specialists in these areas. Often the “struggle” is a manifestation of a lack of prior exposure, time to learn or basic teaching; these are all fixable problems, given some willingness and professional training.
Discrimination and stereotypingÂ
Sometimes, attitudes arguably go beyond such assumptions and venture into personal discriminatory remarks. When I was only in my mid-50s, a direct report (no less) said to me: “You need to start thinking about your retirement and easing off a bit”. I think the direct report hoped this comment would lead to my outsourcing management of the rather complex international litigation I was dealing with at the time, leading me to delegate more of the day-to-day caseload to the direct report, who themselves would have preferred “easing off a bit” – but this comment was potentially “harassment” under the Equality Act 2010 in the UK.
Interestingly, age is the only trait that is given an exception under the Equality Act: the usual provisions don’t apply to age “if [the employer] can show that [the alleged discrimination was] objectively justified and proportionate”. It strikes me that this is given a very wide interpretation in some quarters. Nevertheless, there needs to be honest consideration given by both younger and older colleagues to age-related differences and issues that may arise in the workplace. For everyone to have an equally good experience of work, they somewhat paradoxically each need to be treated individually, according to their characteristics where applicable, and age is no exception. A one-size-fits-all approach simply doesn’t work.
For example, older colleagues could be encouraged to recognise that some younger people may be much better than them at some aspects of the work, and ask/take advice accordingly. In the Consulting Attorney position I mentioned above, I always used to defer to my younger exam-prepping colleagues on most aspects of IP formalities; for obvious reasons, they would generally be more up-to-date than me – although I would always check their advice against appropriate sources before enacting it! It is true that we do slow and can have less strong powers of perception as we age; for example, peripheral vision (not so critical for IP attorneys but necessary for driving) narrows and many older folk become longer-sighted, so need specs for reading, computer, etc. Older people would benefit from knowing, acknowledging and taking account of various changes, and younger folk can be helpful in this regard.
On the other hand, older people can have vast depths of experience and knowledge of all sorts of situations, which can form the basis of their “gut feeling” about the best approach to take – an invaluable resource for their employer. A sort of unspoken “bargain” can take place; in my example, this would go something like: “I’ll help you with the commercial aspects of this work – based on my long experience in industry – and you help me with the nitty-gritty of fees and form numbers.” Such a “bargain” engenders mutual respect and teamwork – both are great benefits in the workplace.
Older colleagues (and some not-so-old, too) perhaps need to be mindful not to knee-jerk the “oh – but we’ve always done it this way” response to proposed changes; continuity of process is never a reason not to change. However, change for change’s sake is also counter-productive, so younger colleagues would be advised to understand what the benefits of change might be and, before forcing change, listen to their more experienced colleagues, who may already have tried things a number of ways – including the proposed one. Coupled with this is a tendency for older colleagues to “tell” younger ones what to do and how to do it: sometimes, this is entirely justifiable, but not always; a collaborative approach – from both parties – works better. Older colleagues could remind themselves that they don’t have all the answers or the only answers and ask younger ones what they think – mutual respect and learning/mentoring can be fostered in this way.
Retirement is a fact!
Finally, I have mentioned before that employers ideally have a process in place in the lead-up to employees’ retirements, which should be transparent and treated as a positive aspect of working life. For their part, older employees would benefit from engaging fully with this (or ask for it, if it doesn’t exist). Those whose identity is inextricably bound up with their work or work persona will probably have difficulty in facing the facts and consequences of retirement, so may emulate an ostrich checking its eggs in the sand when the topic arises; these employees are likely to need sensitive handling. The fact must be openly recognised by all concerned that – unless they fall off their perch while employed – there will be a date on which full retirement happens and the bird has to leave the employer’s cage. In a rather dark adaptation of Benjamin Franklin’s famous quote, I would say: “the only certainty in life is death and retirement” (although taxes follow a close third!). It is therefore sensible to accept the fact of retirement and plan for it, rather than to hang on to the job with grim determination – something that neither the person concerned nor their colleagues is likely to enjoy. But “retirement preparation and readiness” is a whole topic on its own, which I hope to address in a future article.
Got something to say? Then do get in touch!
Meanwhile, if you’ve any thoughts or feelings on any of the issues raised, or would like to discuss your or your workplace’s situation, please get in touch. Above all, I would like there to be a special interest group within IP Inclusive for both those in or approaching their more advanced years and their allies (Older People in IP, or OPIP, for short). If you would like to participate, please email me via [email protected].
Notes and references
[1] Reported at: https://www.cityam.com/martin-gilbert-calls-on-city-to-champion-older-workers/ on 29 June 2022
[2] Dr Hannah J Swift and Ben Steeden, School of Psychology, the University of Kent, Exploring Representations of old age and ageing: A Literature Review, March 2020, available at: https://ageing-better.org.uk/resources/doddery-dear-examining-age-related-stereotypes, accessed 19 July 2022
[3] Available at: https://www.theguardian.com/society/2020/mar/19/older-people-widely-demonised-uk-ageism-report, accessed 19 July 2022
[4] Quoted by the UK’s CIPD in their Understanding Older Workers report
[5] Jayne Smith, WorkplaceInsight.net, 25 November 2019, available at https://workplaceinsight.net/three-quarters-of-young-workers-have-faced-mental-health-challenges/
[6] Pip Brooking, CBI, Labour Shortages: How a Focus on Older Workers Can Help, 10 March 2022, available at: https://www.cbi.org.uk/articles/labour-shortages-how-a-focus-on-older-workers-can-help/
Julie Barrett, Purposive Step Consulting
Julie Barrett is Senior Consultant at Purposive Step Consulting and a member of CIPA’s Diversity & Inclusion Committee.
[Article copyright Julie Barrett, Purposive Step Consulting, 2022; original publication layout and illustrations copyright CIPA 2022]