Udidwot! - Working with Dementia

Dear Rosalie

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.

Rosalie 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.

Accordingly to the Alzheimer’s Society, approximately 982,000 people are estimated to be living with dementia in the UK, representing roughly 1.4% of the total population (around 68 million). While approximately 1 in 11 people over age 65 have dementia, over a third of cases remain undiagnosed.  More women are affected than men, with women accounting for approximately 65% of cases. Around 40% of people over 65 living with dementia do not have a formal diagnosis.  Over 70,800 people have young-onset dementia (under 65), and 1 in 3 people born today will develop dementia in their lifetime.  As the number of people with dementia is forecast to increase (1.4 million by 2040) 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 discipline and dismissal (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.

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.