Employment Issue: Unfair Dismissal and Age Discrimination

How Does An Employer Manage Poor Performance In An Older Employee?

… The answer is not by telling the employee that it is probably time for them to leave their employ because of their age! The employer needs to try and resolve poor performance issues just as they would do with a younger employee.

The employer’s first step would be to meet with the employee on an informal basis and try and ascertain what the cause of the poor performance might be – there could be a simple reason for it such as a need for additional training. At the end of the meeting, the employer should then say to the employee that if there was no improvement in their performance, the capability procedure would need to be invoked.

If there was still no improvement, the second step would be for the employer to move to performance management – the employer would need to meet with the employee, discuss matters with them and then set a formal timetable for improvement.

If the employee’s performance still did not improve after that then the employer could either, as a third step, extend the timetable set previously or issue the employee with a final performance warning which should identify what standards had still not been met, what further support would be offered (if any), a final deadline for improvement and state that dismissal would be likely if the improvement was not forthcoming.

If there was still no improvement after this, the employer could, as a fourth and final step, dismiss the employee on capability grounds. The employer’s focus in all the meetings with the employee should be on poor performance – there should be no suggestion of retirement at all or a preference for that; if there was any such suggestion,  an employer could be on the receiving end of a Tribunal claim for unfair dismissal and/or age discrimination.

At AWB Charlesworth we provide expert, timely advice on redundancy, grievance, and disciplinary and dismissal procedures including compromise agreements and settlements for departing employees. If you would like to discuss any employment issues, please contact our employment team.