Staff matters: Capability issues with long-standing employees 

An area that arises regularly is that of long-standing farm employees who may not be up to the physical nature of the job in the way they once were, says Tom Sharpe, an employment lawyer with Birketts.

Some may be tempted to consider making the employee redundant, to avoid having to address the issue and talk to an older member of staff about why their performance is not what it once was.

See also: Staff matters: common employment issues on farms

“Often people will want to go down the redundancy route as they want to avoid hurting someone’s feelings and they fear a conversation about it will be a bit awkward,” Mr Sharpe says. “But this is not a redundancy situation, it is about capability.

“If you try to use redundancy, when it is really an issue around capability, then that opens you up to be sued in an employment tribunal, which is costly, stressful for both parties and very time-consuming.”

Determining capability

Once someone has been employed for two years or more, they have statutory protection against unfair dismissal.

Employers must have a fair reason for dismissing an employee, one of the fair reasons being capability or performance, and they must follow a fair process.

Where a worker is keen to stay in employment, but the employer is worried they no longer have the physical abilities required for the role, the first step is to broach the subject, with a view to obtaining a medical report.

The medical examination can be carried out by either the employee’s GP or an occupational health therapist, who will prepare a report which the employee will have the right to see before the employer.

This can then be used as the basis for discussion about what aspects of the role the employee can continue to do and whether reasonable adjustments can be made to enable them to continue.

“Getting that up-to-date medical information is crucial in terms of determining how you proceed,” says Mr Sharpe.

“The risk if you don’t get appropriate medical information is that you can be guilty of discrimination – either disability discrimination or age discrimination.”

Reasonable adjustments

Adjustment can take a number of different forms. It might mean slighter lighter duties or doing more tractor work and less manual handling. Or it could be moving to more administrative duties.

“In practice, that may not be a viable option, as it may not be practical to drop certain parts of their role and expect the farm to employ a second person to pick those bits up,” says Mr Sharpe.

“But it is still something that needs to be considered as a part of this overall process.”

Where there is a good relationship with the worker, the best approach is to be transparent and honest, he says.

In many cases, employers and employees may be able to reach a resolution between themselves, potentially including an agreed exit from the business. 

Parties who agree the way forward amicably often decide on a settlement agreement, formerly known as a compromise agreement.

As part of a settlement, in return for an employee agreeing to leave on a set date and not sue the employer, the employer pays them a lump sum.

This is usually based on the notice they are due, which is taxable, plus an additional discretionary sum, which is potentially tax-free up to £30,000, as compensation for the loss of employment.

“This is a common way of addressing the issue, assuming there is an element of goodwill between the parties, and it allows the employee to leave with dignity,” says Mr Sharpe.