Because of changes in the law in 2011, employers no longer have the option of using the statutory procedure to force retirement on an employee. Previously, it had been possible to fairly dismiss an employee who was age 65 or over merely by sending a few letters and having a meeting or two. Employers could use this route as an easy way to get an older individual out of the company, avoiding dealing with any capability problems which would have called for a more time consuming, difficult procedure.

This is no longer a lawful dismissal route and retirement cannot be forced on an employee unless the retirement age is capable of being objectively justified. Objective justification is an extremely difficult test to pass and the vast majority of employers will not be able to meet the requirements.

This means that employers now have to manage older employees in the same way as any other employee, and if their ability to do the job begins to decrease, the company’s capability procedure should be invoked as it would be for any employee regardless of age. Dismissal of an older employee will only be fair if it falls into one of the other potentially fair reasons for dismissal, e.g. capability or conduct etc.

Underperformance because of an inability to do the job due to health reasons, for example, rather than a willing refusal to do the job, is a capability issue. Employers are entitled to expect certain standards of performance and any employee, young or old, should be subject to these.

When these standards are not being met and cannot be rectified informally, employees should be inviting to a hearing after having all of the concerns set out in writing to them. If action is required, a warning will normally be given, along with an improvement plan to be reached within a reasonable timescale and details of the support and assistance to be provided. If, after the designated time period, the employee has not improved, the procedure should be repeated with the next level of warning.

This procedure can ultimately result in the employee’s dismissal if they continue to underperform despite any assistance. This process does not come without risks and a tribunal will need to be shown that the employer has acted reasonably and fairly in all circumstances. A faulty procedure may still result in an unfair dismissal finding so all actions and decisions should be properly recorded.

It’s also important to consider whether the failing performance is being cause by a disability. It could be a new disability, or an existing one which the employee is now finding more difficult to cope with. In these circumstances, the employer is under a duty to make reasonable adjustments to the employee’s role, before dismissal is considered, in order that he is able to fulfil the duties of the job.

By Nicola Mullineux

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