"My Business has changed and I now don’t have enough work going forward. I have an aging technician (Jeff) who isn’t as quick and has started to make a few mistakes. 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 was over 65, he simply couldn’t claim unfair dismissal. The law these days 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.

Whilst there is no national retirement age any more, employers can set a default retirement age if the same can be objectively justified. This is a very high test in law and very risky so we would advise that most employers steer clear of this.

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 or to select him for redundancy on those grounds alone.

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.

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.