Can I force an employee to retire on the grounds of ill-health?

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Q.

One of my most long-serving staff members are experiencing periods of ill-health, which are increasing in length over time. When they are in the office they look exhausted and dispirited, which is to be expected given the decline in health. The staff member is now nearing retirement age, although showing no signs of wanting to retire. However, we’ve noticed that the periods of ill-health have affected their previous levels of employment and it is affecting the business and continuity. In an ideal world the staff member would take retirement, allowing themselves to recover, and we would move on with a clear conscience. We don’t want to raise these concerns with the staff member for fear of adding to their stress but are equally unsure how we will continue with this level of uncertainty.

A.

Retiring someone on the grounds of ill-health is not a process recognised under Employment legislation; it is wording that is often referred to in employer’s pension schemes, whereby employees can receive an ill health retirement pension prior to the age when their company pension could normally be drawn. Since the abolition of the default retirement age on 6th April 2011, a dismissal based on an employee’s age now amounts to unlawful direct age discrimination, unless you can objectively justify it or can establish that being under a particular age is an occupational requirement.

When you say that the employee is nearing retirement age, do you mean you have a contractual retirement age? If so, what is the basis for this?

In the absence of an objective justification or occupational requirement, then retirement would not be a legally safe dismissal. If this is the case then there are other options available to you. I would recommend a welfare meeting with the employee in the first instance, to gather further information. This would involve you recapping the reasons for the employee’s absences, treatment received/planned and you could broach your concerns about their recent exhausted/dispirited appearance.

How you approach a welfare meeting is key. It is best to demonstrate concern for their wellbeing at this stage rather than your concern for the business, as this can leave employees feeling defensive.

You don’t mention what the decline in the employee’s health is attributed to? Dependent on what the employee shares with you in the meeting, and their reasons for ill health, then you may wish to progress this further. If the employee is absent repeatedly with the same ailment or has a potential disability then this would involve seeking their consent to a report from their GP. Once you have the report I would then advise to sit down with the employee to discuss the content and any recommendations the GP might have made. Employers do have a duty of care to make any recommended reasonable adjustments to an employee’s role or environment, potentially making it easier for them to carry out their duties.

Answered by Annie Wycherley, Employment Law Consultant

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