The era of an ageing workforce

The issue of an ageing workforce is becoming increasingly prevalent in some industries where there is longevity of service and a demographic of 'baby boomers.'

It may be an issue of speed, productivity, complex technology or perhaps the physical requirements of the job, but some older employees may struggle to perform the tasks they once could.

The question for employers is how to address this but maintain the dignity of the individuals concerned. Set out below are some suggestions of how an employer can comply with its obligations of good faith and procedural fairness, maintain the person's dignity, and ultimately assist the employee to either perform as required or, to increase the employee's awareness of their limitations and the possibility of retirement.

Employers may face one of three scenarios: (i) the issue is one of performance where age is not a key or relevant factor in consideration; (ii) there is an issue of medical incapacity because of age; or (iii) there is gradual deterioration raising the question of whether an employee is fit to safely perform the requirements of their job (largely due to their age and stage in life).

These overlap to a certain extent, but ultimately, if the issue is one of performance (not age), the logical process when an employee is no longer capable of working to required expectations, is to performance manage the employee.

Medical incapacity

Alternatively, if an employee is no longer able to attend work or perform their duties, it may be a case of medical incapacity. It is common for employment agreements to include termination for poor performance or misconduct, but not all agreements include a medical incapacity clause. These clauses are useful as: (i) they give the employer the opportunity to require the employee to see a company doctor; (ii) the results are given to the employer; and (iii) they include timeframes around when dismissal for incapacity can occur. However, a finding of medical incapacity must be genuine and assessed objectively. If it is not genuine, it may be deemed an unjustified dismissal and/or age discrimination.

'Fitness for work' assessment

Where an employee's inability to perform to required standards is due to a gradual deterioration (i.e where a job requires significant physical work), it can be useful to involve an occupational therapist to conduct a 'fitness for work' assessment, as this will be impartial and practical. A 'fitness for work' assessment may involve assessing both: (i) the nature of the work carried out by the employee; and (ii) the individual employee's fitness to carry out that work. Such assessment can be useful as the employer can seek feedback from the occupational therapist regarding the employee's likely ability to perform the role, their prognosis, any limitations, concerns, suggestions/ recommendations etc. Like a doctor's assessment, it can also be useful when discussing the matter with the employee.

Recommended steps

Where the problem is one of gradual deterioration which has worsened over time and is now affecting both productivity of the organisation and the employee's ability to perform, we recommend the following process to employers:

1 Meet with the employee and outline the concerns, such as: (i) the wellbeing of the employee; (ii) that the job appears more difficult for the employee to perform; (iii) productivity. Discussions/consultation around a 'fitness for work assessment' could be raised so both the organisation and the employee assess the best way forward.

2 Use an occupational therapist to analyse the role itself and its requirements, followed by how the individual concerned manages those requirements.

3 Meet with the employee again to discuss the therapist's observations and any ways in which it can assist. As part of this discussion, the employer may also confirm the required standards expected. Depending on the observations of the therapist, alternative options could be floated such as job share/part time. The employee should be given the opportunity to comment.

4 Ideally, this meeting should lead to one of several outcomes:

- An alternative arrangement (such as part time, job share, reduced hours) is agreed;

- If the assessment is that the employee simply cannot continue in the role and alternatives are not available, discussions could be had about medical incapacity;

- A formal performance management process may be put in place with clear guidance as to required expectations and how they are to be measured. It should be made clear that if the employee does not show sustained improvement, disciplinary action may result; or

- A without prejudice discussion may arise where the employee wishes to exit the organisation or retire.

Summary

If the prognosis of the 'fitness for work assessment' is not good, then the above steps should help raise the employee's awareness that his/her ability to perform the role is limited. Some may interpret that the writing is on the wall and look at retirement or begin to talk about their departure. This is a win-win for both employer and employee.

While following such a process may seem time consuming (where a brief conversation may have achieved the same result), it complies with an employer's obligations. Simply talking about a 'dignified parting of the ways' can result in an employee feeling upset or humiliated (leading to a constructive dismissal claim). A proper process gives the employee time and an opportunity to face the situation and make an informed decision about their future.

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