Thread: Capability and Age Discrimination...

I’ve recently taken over a hotel and I have a challenge with one of my staff – who is a linen porter. She is lady ( age 60) working as a linen porter. She has been working for the company for quite a while and but only 2 days a week . This is a busy role and I do require full capability and flexibility. Unfortunately this role requires heavy lifting, moving beds around which she is unable to do. Her underperformance puts extreme pressure on other team members and basically is making the work impossible. This has been going on for a long time as the previous manager wasn’t really interested in resolving this issue.I’ve propose to her a different (lighter) position but she is refusing it to accept. I can’t afford to keep staff who are basically unable to perform their duties.
Would you please advise what’s steps I can take to resolve this issue.

This is a very complex issue and my advice is:

· You review the risk assessment for this position
· That you review the job description for this position
· That you review her contract of employment
· If she is unable to undertake her duties then you need to ask for her written consent to write to her GP for a medical report outlining her duties, or attaching a copy of the job description, and also attaching a copy of the risk assessment. You then ask the GP if she is fit to undertake her duties. You should include in the letter to her GP (assuming she agrees to your consent to do so) that she has refused lighter work. This refusal is in your favour.

· If she refuses for you to write to her GP then you can hold a capability meeting with her and discuss formally the duties of the job and why is unable to undertake them fully and properly.
· You need to review your disciplinary and capability policies to see how to manage these processes.

What you don’t want is a discrimination case (her sex and age) if you find you have no alternative other than to dismiss for capability.

You could also go down the route of giving warnings for poor performance, which would mean putting in place a performance improvement plan that you then review and take further action on if she doesn’t improve.

You need to show your support as much as you can before you go down the route of dismissal and you really need to establish why she is not performing in case its not age or health related.

You should gather evidence of underperformance, before you meet with her, for example:

· Failure to meet standards of performance as communicated in the job description or other documents
· Failure to meet timetables for the completion of work
· Delivery of work that differs from what had been specified
· Lower output than other colleagues carrying out comparable work, or who work at a comparable level
· Higher error rates than other colleagues carrying out comparable work, or who work at a similar level.

The investigate the background:

· Are there any obvious explanations related to the work environment (e.g. changes in work practices, new equipment, new expectations, higher levels of demand)?
· Is anything known about the individual that may help to explain the performance problem?

When you meet with her you should discuss this openly by:

· Giving feedback on her performance – do you have performance reviews?
· Gain agreement that a performance problem exists
· Jointly explore the reasons for it
· Agree who is responsible for them
· Agree who is to do what to address them
· Keep notes of the discussion (where appropriate)

Bear in mind questions such as:

· Does she understand the expectations placed on her?
· Are the expectations reasonable?
· Is sufficient managerial guidance or support being made available?
· Is there a resource issue?
· Has appropriate training been given?
· Are there underlying personal or health problems?

So it’s not straight forward! There is also so much more to advise on but without the full background or known policies, etc. it is hard to advise further, but you need to be careful

Do you have occupational health that you could refer her to?

Do you have private medical that you could refer her to?

I hope this is helpful and good luck!

By all means contact me if you wish further support.