In 2011 the compulsory retirement age of 65 was abolished in the UK, following the implementation of the Equality Act 2010. Age is listed as one of the ‘protected characteristics’ and it was deemed to be discriminatory to force a person to retire purely because they’d reached the age of 65. Nowadays employees can continue to work as long as they like…

From an employer’s perspective, however, employees can go on working as long as they’re able to do the job.

I’m a strong believer in the Equality Act but this is one I do struggle with. I fully believe that an employee should be able to work as long as they want to, provided they’re still able to do a good job. My main gripe about the removal of the facility to ‘force’ someone to retire is the emotional distress, embarrassment and sadness caused to the individual by the alternative route left to employers.

I’m talking about performance management – as this is now the only option left to employers when it comes to dealing with older staff who are unable to perform as well as required.

Not only can it be demeaning for the employee, it places a much larger workload on the manager. It can also be emotionally taxing as frequently the underperformance is a result of nothing more than the problems that come with age – memory, physical fitness, personal resilience, energy levels, eyesight and hearing – so it can be very sad to put an employee through a performance management process when they have little chance of improving.

So what can you do as a manager to make the employee feel supported?

This is a tough one as my first instinct is to want to be honest with the individual about age or health being a factor – but as both age and disability are protected characteristics, you’re putting yourself on shaky ground there.

So instead you need to highlight specifically what’s being affected and what you can offer to try to negate this.

For example, if you have a receptionist booking in the wrong patients because they’re becoming hard of hearing, you can offer the use of a headset rather than a telephone, show them how to increase the volume on the phone, ensure they take two identifiers when dealing with patients (i.e. not just the name).

If you have a secretary repeatedly making typos on referral forms, offer to pay for an eye test and contribute towards the cost of glasses, consider dictation software, review the working environment to reduce screen glare, insist on regular breaks to minimise fatigue.

In all cases you need to highlight what the underperformance is, what the required standard is, what support is needed to be able to achieve it, and a time frame within which to do so. If the employee at any points feels that the plan is unachievable, then you do need to have a more honest conversation.

You need to make it clear that what it boils down to in this scenario is that the employee can no longer do the job to the required standard. So what are your options then?

Downgrading or redeployment

If the employee can’t do this job, is there another job they could do? It can be a great waste of knowledge, skills and experience when a long-standing member of staff leaves the practice. Is there another area where their attributes could be better utilised? If you have a senior nurse who isn’t able to keep up with the changes in long-term condition management, can they do treatment-room tasks instead? If you have an HCA who can’t manage long clinics any more, can they do shifts on reception? Can you take any more complex duties off the individual and make the role less complex? Do they need to work fewer hours?

It’s important to remember – and to ensure the employee is aware – that changes to a role as a result of performance management do not attract payment protection. So if the employee is downgraded or redeployed to another role with fewer responsibilities, their salary will decrease accordingly. Redeployment is covered within section 3.4 of the Redundancy Policy.

Retirement/resignation

If your employee knows they won’t pass the improvement plan, and there are no available options for redeployment or downgrading (or the employee refuses any of these offers), the onus should really be on them to either resign or retire. If they admit that they won’t be able to improve – or sustain an improvement – and refuse any other help, they don’t give you any other option and it should be down to them to relinquish their role.

Dismissal under capability

But what if they refuse to do that?

Then you have to follow your performance management process through to the end. If they refuse to participate in the process – and your policy allows for it – you can proceed to a capability hearing. At this hearing – usually chaired by someone who’s not involved in the management of the employee – you need to present what you’ve done to support the employee and their refusal to cooperate with the process or action plan. The employee should be invited to put forward their side of things, but if their story adheres to what they’ve already told you, there will be little option than to dismiss them on the grounds of capability.

Provided you have documented every step and followed your policy to the letter, you should have nothing to worry about in terms of a tribunal claim.

Obviously this is not the route we want to take, but you’ll be surprised at how many staff are reluctant to give up working and will hold on at almost any cost. There seems to be a viewpoint in the NHS that a ‘job for life’ really means ‘for life’, and that employees should be allowed to ‘coast’ to some degree in their later years. However, with the pressures on resources and increased scrutiny from the CQC, we as managers are unable to let that happen. Not to mention the damage it can do to a team that then has to pick up the slack.

Thankfully, in my experience, most staff have the insight to know when it’s time to throw in the towel and most do so as soon as the words ‘performance management’ are uttered.

For all of my staff who have retired when they were still very good at their jobs, I’ve signed them up to my staff bank so that we can utilise their skills, knowledge and experience when we’re short-staffed and need cover. This has worked incredibly well as they still feel part of the team, and it’s helped massively when we’ve had staff unexpectedly off sick. I’d highly recommend it, provided they’re still capable (and welcome, of course!).

Useful resources:

• Equality and Diversity policy [PLUS]
• Disability – reasonable adjustments agreement [PLUS]
• Performance management resources [PLUS]