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My older employee is not performing. What can I do?

Age Discrimination legislation was first introduced 11 years ago and in 2010 it became part of the Equality Act encompassing the core 9 threads of discrimination law. With the law came the abolition of the retirement age and employees can now in theory work into their old age without restriction. But if an older worker’s performance starts to slide, what can employers do (without falling foul of legislation)?

My older employee is not performing. What can I do? Age Discrimination legislation was first introduced 11 years ago and in 2010 it became part of the Equality Act encompassing the core 9 threads of discrimination law (you can also watch a video briefing here.) With the law came the abolition of the retirement age and employees can now in theory work into their old age without restriction. But if an older worker’s performance starts to slide, what can employers do (without falling foul of legislation)?

So imagine the scenario, Ted joined the Company as a young man and has become established as Groundsman for a large garden centre, tasked with maintaining hedges, borders, car parks and associated facilities. (To help you settle into the story, watch this related classic yellow pages advert!) But now in his 80s we’ve noticed his performance (and the grounds) have started to slip. There are younger employees who could take on this role, or part of it perhaps, and they’d be cheaper too. Ted’s employer requests myHRdept to help set out a plan.

Firstly it would be a good idea to have in place a performance management policy as this document will set out the steps the employer will take in the case of substandard performance. If you ever were to be challenged in a tribunal one of your key defences will be to show that you had a policy, that both you and the employee understood it and that you followed it. (All myHRdept clients are provided with a copy in their HR policy pack, copies can be purchased by contacting us at enquiries@myhrdept.co.uk.)

No employer is expected to put up with poor performance and it’s perfectly possible to fairly dismiss an older employee, providing the policy is followed and provided that at all times an employer is reasonable (I’ll come back to that later). Now with a new employee with, say, 6 months service an employer might decide (in the absence of any protected characteristics) to act swiftly and bring poor performance to a rapid conclusion via a dismissal. The same cannot be said however for a long service employee – here expect a process of 3 - 6 months – and don’t moan – you’ve had 40+ good years out of Ted!

Why such a long process? The core principles of the myHRdept Performance Management policy are:

  • Take time to identify the problem and supporting examples
  • Make the employee aware of the problem
  • Be clear on the outcome if performance cannot be improved
  • Set a plan for improvement & detail what support will be given
  • Allow the employee sufficient time to achieve the required standard
  • Review progress informally and formally at the end of each review period (e.g. 3 months. The employee may be accompanied at formal reviews)

Now in Ted’s case given his 40+ year history ‘sufficient time’ is unlikely to be a month or two – it could easily be an initial 3 month review period with a first warning that if improvement is not achieved a final warning may be issued in advance of a further and final 3 month period. NB: Always seek advice from myHRdept about the warning process and to obtain the performance improvement plan toolkit.

Before any decision to dismiss with notice is taken, Ted’s employer must ensure it is following reasonable steps to remedy the problem (which may involve Ted himself making some changes.) For example….

  • Does Ted have any treatable medical conditions that may be contributing to the problem (in which case an occupational health appointment may be necessary, or get information from Ted’s GP via an employer’s medical consent process)
  • Would different equipment help Ted and is it reasonably obtainable bearing in mind the resources of his employer? (remember the yellow pages advert)
  • Would additional training help (e.g. to use new or different equipment that requires less labour?
  • If having considered all of these things the employer decides that Ted cannot continue in his role, the employer must consider alternatives to a dismissal, for example:
  • Would Ted want to and would it be possible for him to go part time perhaps as an interim step towards eventual retirement?
  • Is there other work available (perhaps on different hours) that might be more suitable for Ted?

Finally, in the absence of all other options, the employer might consider offering Ted the opportunity (and it must be an entirely voluntary opportunity) to leave with a package. Although Ted’s role isn’t technically redundant, a voluntary settlement agreement in exchange for an ex-gratia payment (perhaps equivalent to a redundancy) can be paid free of tax and NI contributions and might just provide Ted with the nest egg he needs to take up fly fishing. Or buy his Harley Davidson!

If you're thinking of outsourcing your HR why not contact myhrdept.co.uk. With full service Premium Plus packages from only £140 per month (and start-up packages from just £70 per month) and fixed price HR support options available for one-off issues, we believe we offer the best combination of quality and price available in the UK. Call us on 01628 820515 to discuss your requirements or email us and we’ll call you back.

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