Weekly dilemma: retiring a poor performer

I have a member of staff who is 60 next month. He is often absent and, when he is at work, he performs poorly. Other staff complain that they have to “carry” him, but I suspect he may be suffering from health problems. Our normal retirement age is 60. Is it true that I can’t retire him on his birthday? What can I do about this?

Age discrimination legislation came into force on 1 October so you must review your retirement age. It is no longer possible to insist that an employee retires before the age of 65, unless this can be justified – for example, by the physically demanding nature of the work.

However, it is possible to dismiss somebody for lack of capability to do their work. For example, if you have introduced new technology and this employee is unable to cope with it, you should go through a staged process of formal reviews of his performance. You may conclude that this employee is not capable of carrying out the job. However, if the employee has been with you for some time and has been able to perform satisfactorily, you will need to find out why things are not working so well recently.

You mention the possibility of a health problem. An employee with a long-standing health problem that has an adverse effect on their physical or mental condition may be considered disabled under disability discrimination legislation. In that event, you will have to make reasonable adjustments before you can consider taking any action.

You should arrange for this employee to have a medical at the company’s expense to see whether his health is a problem that you should address. If it is, take care to assess what adjustments might assist with this. If the medical situation is not a long-term problem, move on to consider the work issues.

Nicola Walker, partner, Hogan & Hartson

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Each week we ask the experts to answer your legal dilemmas. If you have a legal question or dilemma, e-mail [email protected]