Feb 2010: Avoiding problems when dismissing older workers

Human Law Ezine - February 2010

Avoiding problems when dismissing older workers

Dismissing any employee can be difficult, even for the most experienced and hardened manager or business owner, but when it comes to a worker who has been with the business for many years, has shown loyalty and commitment it can be even more difficult.

I’ve recently been involved with an organisation which tied themselves in knots over the dismissal of an older worker. By taking a look at this as a case study (which has been altered to protect the identity of the parties involved) we can see how others can avoid their mistakes.

How not to dismiss an older worker

Here’s the scenario: The organisation is fairly small and whilst all the staff and management are very hardworking and well meaning the board directors lack formal people management skills and experience.

This manifests itself in the organisation having informal procedures around employment and fairly loose board decision making processes.

The organisation has one worker (Joe) who has been with them for many years. He worked his way up from a junior admin role to a senior position in the organisation. As an elder statesman within the business he enjoyed something of a privileged position and did tend to lord it over some of the more junior staff.

At age 69 Joe had already worked for four years over the statutory retirement date. The directors had been discussing for some time the need to make some changes in the organisation, bring in new blood. The decision is made that Joe should be asked to leave.

Everyone felt a bit uncomfortable about the decision but wanted to make the process as dignified as possible so decide to take Joe out of the office environment to join them in their box at the local football ground for a midweek match. From the management’s point of view they felt telling Joe away from the office and giving him a bit of a treat demonstrated their respect for a long standing member of staff. One of the senior managers and an unpaid non-executive director were given the job of telling Joe his fate.

Initially Joe seemed fine. The management thought everything was going to be OK.

Inside however Joe was furious, he felt insulted that his employer had tried to ‘buy him off’ with a social ‘treat’. Having put on a brave face in front of his colleagues as soon as reached home that evening he contacted a solicitor and started proceedings against his employer.

The relationship between Joe and the management team, indeed all the staff, deteriorated. Legal letters started to fly. There were even allegations of an affair and a mysterious file appeared which seemed to incriminate Joe in a fraud, all of which is rapidly denied and withdrawn.

The parties were at loggerheads. And Joe was angry and embittered at the treatment he’d received. Joe started legal proceedings but senior management within the organisation are also angry believing Joe was being greedy in his quest for compensation. They allow their emotions to cloud their judgement and ignore the legal position.

After a number of very disruptive months an agreement is reached, but only after a legal bill of £25,000.

And the cost goes way beyond the financial cost. The case caused inconceivable disruption within the organisation, one member of the senior team was absent with stress and other members of staff heard rumours which were very unsettling.

What started out as an attempt by an inept management team to ‘soften the blow’ of dismissal turned into the most costly legal case that organisation has ever seen.

Guidance on staff dismissals

Of course this cost in wasted managed time and legal fees could have been avoided. Our advice for anyone in similar circumstances is:

1. Take professional legal and HR advice. Any dismissal is subject to employment law rules. The dismissal of an older worker can be caught by age discrimination legislation and whilst there are rules which allow for workers who exceed the statutory retirement age to be asked to leave there are still rules around how this must be handled.
2. Train your staff. Make sure that anyone who’s likely to be involved in employee redundancies or dismissals is properly trained in both the legal aspects and the soft skills to handle such cases professionally. In this case an under-prepared non-executive director made matters worse with inappropriate comments and poor management of the process.
3. Be very careful in mixing business and pleasure. Dismissing an employee, especially a long standing one, is a tough job and has to be done properly. You can’t soften the blow so don’t try to. Instead get good advice from lawyers and HR professionals, agree and follow a formal procedure, document everything and be fair.
4. Recognise, understand and address the anger. In this scenario the organisation was not capable of dealing with the distress and anger of the member of staff. Ignoring how they felt caused bitterness and made them more and more entrenched in their decision to ‘make the employer pay’. An apology for the way the employee felt they were being treated and an acknowledgement of the respect and appreciation the organisation felt would have gone a long way here.
5. Consider mediation. In cases like this where the parties can’t agree and emotions start to come into play getting the parties around a table, facilitated by a skilled mediator can really help. In this instance the earlier the better. Mediation could have avoided significant costs and might have enabled the worker retain some personal dignity and the employer could have been seen in a much better light.

For advice on redundancy, dismissal and employment for the older worker contact Justin Patten of Human Law Mediation.