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“I have an aging technician (Jeff) who has started to make quite a few mistakes. He seems to be forgetting things and is getting a bit long in the tooth so I wondered whether I should just suggest it might be time for him to retire? I wouldn’t mind offering him a small sum of money to go so I can get someone younger and quicker on the job. He has been a good employee but I think enough is enough?”
Prior to the Age Discrimination Legislation being introduced in 2006, the above scenario provided Jeff with over 65, he simply couldn’t claim unfair dismissal. In the above situation therefore the employer could have had a conversation along the lines proposed by the Manager and he could have been dismissed without any comeback on the employer. On the 1st October it will be 10 years since that has changed. Many employers think they can still dismiss fairly by reason of retirement and that was because between 2006 – 2010 retirement was a potentially fair reason provided the employer followed certain specified rules and procedures.
The law these days however is very different and it would be age discrimination to dismiss him simply because he is getting too old for the job, or to imply or accuse him of the same. Employers need to be particularly careful about making assumptions based on peoples age even if factually it is correct that people as they go into their 70s and 80s may slow down and be less capable (in some cases, not all) making decisions on that basis is likely to land the employer in the tribunal.
In the above situation, Jeff has to be treated like any other employee with capability problems. If he is not performing then clearly that can be a matter for disciplinary/capability procedures which is likely to involve investigation and medical evidence. If it transpires after investigation and a reasonable period of procedure including potentially warnings and any adjustments that Jeff really isn’t capable of performing the job any more, then the employer, provided he’s laid a solid paper trail to that effect, may be able to fairly dismiss Jeff on those grounds.
Nor is there any national normal retirement age any more. Employers can set a default retirement age but they have to objectively justify the same and that is a very high test in law so most employers steer clear of this. In the motor industry of course, there are certain jobs which require a high degree of technical skill and care and often driving abilities and therefore an employer faced with the situation of employee making increasing errors and encountering capability problems it may be wise to monitor the situation more closely and if there are doubts as to health/eyesight etc., then the appropriate medical evidence should be sought to justify potential dismissal if failing health is resulting in the capability to perform the role.
Andrew Macmillan, Solicitor, Motor Industry Legal Services