Q&A Employee is threatening us with Tribunal as age related issues mean he cannot do his job

Q:      An employee in his early 60s is threatening us with an employment tribunal for age discrimination because he says we are asking him to do physical work that has become too difficult due to age-related health problems (i.e. osteoarthritis). Whilst we feel sorry for him, he has done the same job for seventeen years and we don’t have any other, less physical work we can offer him. He asked us to make him redundant but there are no grounds for that as the job very much still exists. So now the tribunal threat, which he clearly believes will provide a potential payout to enable him to retire early under the protection of employment rights legislation. What is our best approach?

A:       The first thing to say is that under the Equality Act 2010 this situation may well be analysed by a tribunal as a disability discrimination issue. Where an employee is disabled, employers have a legal duty to consider and, where reasonable, implement adjustments to support them in remaining in work. This could include modifying his existing role to reduce physical obligations, offering more frequent breaks, or considering redeployment into an existing, less physically demanding role when one is available.

If there really is no way you can accommodate changes to enable this employee to continue working for you, you must prove that you have explored all adjustment possibilities and followed a fair capability procedure. Failure to do so could expose you to claims of unlawful discrimination. If his health problems are severe and permanent, depending on the rules of the relevant pension scheme he may be eligible to take early medical retirement. From your point of view, dismissal on capability grounds may be lawful, but only where you can prove you have done everything in your power to assist him and that dismissal is a proportionate last resort. Before taking any action at all, however, you should speak in depth to an employment solicitor.

This question has been answered by James Denton, a Solicitor with GHP Legal.  If you would like to speak to someone about this or any other legal matter, please visit our website www.ghplegal.com and use the contact us form, or call us on: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194