“I have an aging technician (Alan) 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 it’s time he left.”

Prior to the Age Discrimination Legislation (introduced in 2006) in the above scenario, provided Alan was over 65, he simply couldn’t claim Unfair Dismissal and Age Discrimination didn’t exist. The employer could have had a conversation along the lines proposed by the Manager and Alan could have been dismissed without any comeback on the employer. On the 1st October 2016 it will be 10 years since that has changed. Many employers think they can still dismiss fairly by reason of retirement, that was because between 2006 and 2010 retirement was a potentially fair reason to dismiss, 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 Alan simply because he is getting too old for the job, or to imply or assume the same. Employers need to be particularly careful about making assumptions based on 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 an employer in the Employment Tribunal.

In the above situation, Alan simply has to be treated like any other employee with capability problems. If he is not performing, then clearly that can be a matter for capability procedures. This is likely to involve investigation and medical evidence. If it transpires after investigation and a reasonable procedure (including potentially warnings and any adjustments) that Alan really isn’t capable of performing the job any more, then the employer may be able to fairly dismiss Alan on those grounds.

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 involve driving duties. It may therefore be wise to monitor a situation similar to that described above closely and if there are doubts as to an employee’s health/eyesight/hearing, which may be deteriorating with age, then appropriate medical evidence should be sought to justify a potential dismissal.

Henry Knill

Solicitor

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.