4th March 2013


 Issue No.  2013/03




One of the most significant changes in employment law of recent years has been abolition of the compulsory retirement age. Some have seen it as a sign of long overdue progress and another step along the road to equality in all things employment. Others think it is barmy and has created more problems than it sought to solve. From some of the comments we have heard from our clients, it is clear this is presenting difficulties for employers.

What happens when age catches up with employees (as it will inevitably do to all of us) and physical or mental powers begin to wane? It is unrealistic to believe that job performance will not be affected by this and when it occurs what steps can an employer take?  Previously a long serving and loyal employee, who may be struggling a little but is in the run up to retirement, would likely be supported by their employer through to a known retirement date. Now however this impartial though arbitrary 'line in the sand solution' has gone.

If you take the view that jobs require either ‘brain’ or ‘brawn’ – and usually a combination of the two – does your approach differ?

Without a retirement age, which used to provide the dignified exit, it seems that the only ‘safe’ way will be to wait until they are no longer capable of doing their job. But how do you, as an employer, decide when that is? At what point is it safe to conclude that an employee can no longer do their job?   

Brain or Brawn? 

For employees who fall into the ‘brain’ category, physical deterioration may not matter so much as long as they can pick up the ‘quill pen’ or its modern IT equivalent, and meet their targets. Age will not weary them so much. Maybe a little slowness or forgetfulness will intervene but it could be they wish to remain in blissful employment until the day they die.

For those in the ‘brawn’ category it is likely to be different. Take for instance the hod-carrier on the building site.  When do you decide they are not performing to the required standard and you start the process that will result in a capability dismissal!  Is it when they can only carry half the bricks, or the same number of bricks but only at half the pace? Or a bit of both? And if the reduction in performance is due to a degenerative condition, when does this become a disability, if at all, and do you have to make adjustments; for instance a half-capacity hod to carry? You may have to set performance standards for hod-carriers [how about six bricks over 50 metres in a minute?] as an objective measure in order to justify management action. “Barmy”, I hear. 

We know most of you don’t have the problem of hod-carriers but you could well have the warehouse operative loading pallets, the machine operator, packers, sports teachers, security guards or drivers. The principle holds good for many jobs where the physical nature of the job is the critical factor.

In both scenarios what results is you get to a point where the employee is struggling to do their job and you have to start a capability process that gives no allowance for the sensitivity of the situation.

What steps should employers take?

This is a real problem for employers to address and tackling such problems is fraught with opportunity to inadvertently get it wrong. The outcome – possible unfair dismissal and discrimination claims against you. The key elements to be aware of on this are: 

  • Have a clear understanding of what is expected from employees – a Job Description and Key Performance Indicators will assist set these standards.
  • Have a process of monitoring performance – a regular discussion or formal appraisal system will help.
  • Make sure managers and supervisors are aware of their role in managing performance and managing employees and that they are competent to do this in a way you are happy with. In other words - train them.
  • Be consistent in how you apply these policies and approaches.
  • If there is a failing health or capability issue then you should obtain medical opinion. Remember that employees have specific rights about this and any request for a medical report from a GP or Specialist will need consent.    

And most importantly – if you have these matters to address in your business a lot of time can be saved by taking advice. If you think we can help then do call us on 08456 446 006.





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