New guidance on age discrimination and the case of Eileen Jolly

ACAS has recently released new guidance on age discrimination including useful factsheets with key points for employers to consider in the workplace and popular myths surrounding age discrimination. The new guidance can be found here. 

At the same time, the Reading Employment Tribunal has recently delivered its judgment in a claim for age and disability discrimination in the case of Eileen Jolly v Royal Berkshire NHS Foundation Trust, a case involving an 86 year old lady which deals with many of the age discrimination issues raised in the new guidance. 

Facts of the case

Mrs Jolly worked for various entities that eventually became the Royal Berkshire NHS Foundation Trust (“the Hospital”) between 1991 and 2016 as a medical secretary.

By 2016 Mrs Jolly was 86 years old and was suffering from a heart condition and arthritis.

In September 2016 Mrs Jolly was informed that she was being investigated by the Hospital’s Director of Operations with regards concerns the Hospital had with her capabilities. Mrs Jolly was then placed on “special leave” which meant she had to collect her belongings and she was then escorted from the building. Effectively Mrs Jolly was suspended.

The manager investigating the capability issue (“Mr E”) heard a number of discriminatory comments from Mrs Jolly’s colleagues when investigating her capabilities. These comments included being told that Mrs Jolly was too old to walk the length of the building, that Mrs Jolly was old and frail because of her arthritis and that there were concerns regarding Mrs Jolly working overtime because of her age. During the investigation there was a suggestion that Mrs Jolly could undergo some additional training, though Mr E himself dismissed this idea stating that Mrs Jolly was “stuck in old secretarial ways”.

A capability meeting was then listed to be heard by another manager, (“Mr D”). Mrs Jolly asked for the capability meeting to be postponed due to a pre-booked holiday and a medical appointment, but the Hospital refused and stated the hearing would go ahead in her absence with Mrs Jolly being listed as failing to attend. 

Mrs Jolly then raised a grievance. Mr D replied by letter to inform Mrs Jolly that her grievance would be heard at the capability meeting, if she so wished. 

Following the meeting, which Mrs Jolly did not attend, she was informed that the Hospital was terminating her employment due to capability concerns. 

Mrs Jolly appealed her dismissal, but was wrongly informed by the Hospital that her appeal had been filed late. Mrs Jolly wrote to the Hospital to point out that her appeal had been lodged in time, but her letter was ignored. 

Mrs Jolly issued a claim in the Tribunal in relation to age and disability discrimination. 

Judgment

The Tribunal found that:

• There was no evidence that there was an issue with Mrs Jolly’s capabilities;
• The Hospital’s capability policy did not allow the Hospital to suspend Mrs Jolly;
• Mr E failed to investigate Mrs Jolly’s colleagues comments and allowed them to influence the investigation constituting acts of age and disability discrimination;
• Mr E’s comment regarding “old secretarial ways” meant Mrs Jolly was treated differently to a younger comparator with regard his attitude to providing training;
• The capability process followed was not in line with the Hospital’s policy;
• The Hospital’s approach to the capability procedure was more akin to a disciplinary process where conduct was being investigated;
• The Hospital was unreasonable in refusing to postpone the capability meeting;
• Mrs Jolly had been discriminated against because of her disabilities and her age, in breach of the Equality Act 2010;
• The Hospital had failed to respond to Mrs Jolly’s grievance;
• The dismissal was unfair; and
• The reason for the failure to allow an appeal and to respond to Mrs Jolly’s correspondence was because of her age.

A remedy hearing has now been listed for 14 October 2019 where the Tribunal will consider the appropriate compensation to be paid to Mrs Jolly.

What can employers learn?

It is essential that employers treat those with disabilities equally and that they do not discriminate against a person because of disability, age or any other protected characteristic. Failing to provide training to an employee due to their age is specifically mentioned in the new ACAS guidance, an issue arising in Mrs Jolly’s case. It is also important for employers to carefully follow their own procedures when investigating capability or disciplinary issues and not to allow discriminatory views to influence the process. 

Those making decisions must make clear what evidence they have and have not taken into account. In this case the Tribunal concluded that the discriminatory comments were taken into account. They did this because although the manager said, in evidence, he had not done so the decision letter was silent and they were able to infer that he had taken them into account.