One of our long serving employees is in their late 60s and has been suffering from a form of dementia for some time. We increasingly gave him menial tasks to perform but recently his condition got worse. His wife knew that we were struggling with her husband’s condition but said his work was what was keeping him going. Unfortunately, however, his condition got so bad that he needed so much supervision that we decided it was best to make his position redundant. We have now received a claim from his solicitors citing disability and age discrimination as well as unfair dismissal.

Peter replies:

His job was clearly not redundant and it is not kind to mislead people, or hide behind redundancy as a catch all ‘safe reason’ to dismiss people. More than 40,000 people under the age of 65 have been diagnosed with dementia in the UK – and 18% of them continue to work after a diagnosis. As the number of people with dementia is forecast to increase and with a greater number of people expected to work later in life, it’s an issue that’s bound to become increasingly significant in the workplace.

People with a disability are protected under the Equality Act 2010, and generally this will include people living with dementia. This means that employers have a duty to make reasonable adjustments for staff with dementia so that they are not disadvantaged at work. Adjustments might involve a review of current job description, reallocation of duties, a change of working hours, or redeployment to another role.

The Alzheimer’s Society Guidance says:

Dementia is a progressive condition that will increasingly impair a person’s ability to work. Eventually, it will come to a point where it may no longer be possible for them to continue to work, and the person and their employer will be concerned about future changes. When it becomes clear that an individual is no longer able to fulfil their role, there needs to be an open and honest discussion about this, support to make decisions, and a conversation to explore any options and access to pensions and benefits advice.

It seems that you have approached the subject of reasonable adjustments but failed at the final hurdle of parting company properly, i.e. openly and honestly. You also appear to have overlooked the health and safety argument which might have helped you to ‘part company’ with him. Alternatively you could have used the capability (ill health) procedure. Either way it would have been better to have pursued a ‘dignified exit package and strategy’.

You are clearly at risk from injury to feelings compensation in respect of the discrimination claims but may be able to defend the loss of income elements on the basis that had you done it properly it would have happened anyway (known as a Polkey reduction). If you gave him redundancy pay then you should be able to offset this to show that he has not been financially disadvantaged. If you forgot this then a redundancy payment (at least) will be necessary to make this case settle.

You should either use ACAS to achieve an agreement known as a COT3 or do what you should have done in the first place, which is to negotiate a settlement agreement based on a realistic assessment of the cost of losing at Tribunal, (including the huge amounts of time involved), and the bad publicity generated from your actions.

Acas has published guidance in the form of Promoting positive mental health in the workplace, which aims to help employers tackle the stigma around mental health, create a supportive environment and take practical steps to address to issues surrounding mental ill health in the workplace. It is well worth reading.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.