If you are considering dismissing a disabled employee, whether under a disciplinary, absence management or redundancy procedure, you should always consider whether a reasonable adjustment can be made either to the relevant procedure itself, or to other aspects of the workplace or to working arrangements. A failure to comply with the duty to make reasonable adjustments could amount to an act of disability discrimination.
The Disability Code of Practice (pdf)
, particularly chapters 5 and 8, provides guidance about how the reasonable adjustment duty applies.
If you are considering dismissing a female employee, whether under a disciplinary, absence management or redundancy procedure, the employer must avoid committing acts of pregnancy or maternity leave discrimination.
You have a statutory duty in relation to employees who are taking maternity leave. If you are considering making an employee on maternity leave redundant, and it is not practicable by reason of redundancy for you to continue to employ them under their existing contract, then you must offer them any suitable alternative vacant post, if one exists.
You should be aware that using length-of-service as a selection criterion may place younger employees at a substantial disadvantage compared to older ones, and this may therefore be age discrimination. If this is likely to occur then the criterion should be objectively justified, or otherwise abandoned.
This type of selection criterion may also have a discriminatory impact where you have been using lawful affirmative or positive action measures to successfully increase the level of representation in your workforce of groups who have been historically underrepresented. Where such a criterion is likely to have a disproportionate impact of this kind, then again it should be objectively justified, or should otherwise be abandoned.
No, since April 2011, you are no longer permitted to routinely require employees to retire at the age of 65. If you do, an employee may be able to complain about age discrimination unless you follow certain procedures and can justify the decision to terminate their employment at 65.
Employers might choose to deal with retirement in a number of ways:
- Allow employees to work beyond the age of 65 until they choose to resign voluntarily or you are compelled to dismiss them on grounds of incapacity, misconduct, or redundancy (i.e., grounds that justify the dismissal of an employee regardless of age). Many employers see the benefit of keeping on experienced and loyal employees while they remain fit to do the job.
- Decide on a compulsory retirement age for all employees, or for a class of employees. You need to objectively justify any and all compulsory retirement ages.
- If you decide to have a compulsory retirement age, you have to be able to show that there is a very good reason why your employees, or a group of employees, cannot continue to work beyond that age. Ask yourself whether you have good evidence to support this reason and consider whether there is an alternative (non-discriminatory) way of achieving the same result. A balance must be drawn between the business needs which might compel you to set a compulsory retirement age, and the discriminatory impact this will have on the employees affected by it.
Contact us if you require further advice on age discrimination and retirement issues.
When retiring someone you must follow the correct statutory dismissal procedure as outlined in the Labour Relations Agency´s Code of Practice on Grievance and Disciplinary Procedures.
If the proper procedure is not followed, this automatically constitutes unfair dismissal even if you are able to objectively justify the retirement age you have set.