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Age Discrimination

The Employment Appeal Tribunal in the case of Jolly v Royal Berkshire NHS Trust has considered a claim of age discrimination. Ms Jolly is reportedly the oldest person ever to bring such a claim.

Background

The Claimant started working for Royal Berkshire NHS Trust in 1991 (at the age of 61) as a medical secretary.

Following a change in the Claimant’s role, she arrived at work one day and was told that she was under investigation for waiting list breaches and was suspended and escorted off the premises. She later received a letter informing her that she was being investigated under the capability procedure and was required to attend a meeting in two days’ time. The Claimant requested a postponement so that her trade union representative could attend the meeting with her, but this was refused.

The Claimant submitted a grievance alleging age discrimination (at this point the Claimant was around 85 years old). In her appeal she explained that she had never received adequate training on her changed role and that the consultant who she worked for had no issues with her work.

The grievance was ignored and the Claimant was dismissed. An appeal was submitted but this was rejected on the basis that it was lodged out of time, which was incorrect.

The Claimant submitted a claim for unfair dismissal, age discrimination and disability discrimination (on the basis of a heart condition and arthritis).

Decision

The Employment Tribunal upheld all of her claims finding that assumptions had been made about the Claimant’s health and age which had resulted in her dismissal.

It was noted that the investigation report included comments made by colleagues that the Claimant “had old secretaries’ ways” and was “frail”. Another colleague was even quoted as saying that “it was a concern that you would walk in and find [the Claimant] dead on the floor”. The tribunal held that these comments would have influenced the decision maker.

Furthermore, the failure to hear the Claimant’s appeal, not dealing with the grievance and suspending the Claimant on the basis of capability also amounted to less favourable treatment on the basis of age and disability.

Comment

Assumptions should not be made by employers about a person’s capability to work based solely on their age. Steps should be taken to establish the possible cause of any capability concerns, regardless of the employee’s age.

In this case, the tribunal is yet to decide the appropriate amount of compensation but this will include loss of earnings and an award for injury to feelings. As the Claimant stated that she intended to work until she was 90 and the dismissal left her feeling depressed, ashamed and humiliated, the compensation could be significant.

 

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