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The recent Employment Tribunal decision in the case of Jolly v Royal Berkshire NHS Foundation Trust has been in the news partly due to the fact that the Claimant (aged 86) is thought to be the oldest ever person to win an age discrimination case in the UK. The case is a stark reminder for employers of the dangers of allowing processes to be tainted by age related stereotyping.

Facts

Mrs Jolly worked for Berkshire NHS Trust as a medical secretary for a Consultant for many years (having commenced employment for the Trust’s predecessor when she was 61).

She was involved in maintaining non-urgent surgery lists. In 2016 Mrs Jolly was suspended and the Trust wrote to her stating it was concerned about her capabilities and alleging that certain failings appeared to be the result of the waiting list not being managed effectively and standard procedures not being followed. Mrs Jolly raised a grievance to the effect that she had received inadequate training, that she was unfairly being treated as if she was under performing and alleged that the real reason she was being treated in this way was because of her age. Mrs Jolly was invited to a capability review meeting and was subsequently dismissed because of an alleged, “catastrophic failure in performance where damage had been caused to patients as well as potentially the Trust’s reputation.” Mrs Jolly appealed the decision to dismiss her but the Trust wrongly treated her appeal as late and failed to respond when this was pointed out to them by her. Mrs Jolly lodged claims for age and disability discrimination as well as unfair dismissal.

Decision

The Tribunal decided that Mrs Jolly has been subjected to age related discrimination in a number of respects including the manner in which the investigation was conducted. The Tribunal criticised the content of an investigation report which contained comments from Mrs Jolly’s colleagues who had referred to her age, her alleged ability to walk the length of the building and perceived “frailty”. The Trust was found to have improperly taken these comments into account. The failure to properly consider Mrs Jolly’s grievance was also regarded as discriminatory on grounds of age in circumstances where the grievance was itself a complaint of age discrimination. The dismissal itself was also found to be age related discrimination in circumstances where a capability issue arose but the Trust did not give Mrs Jolly the ability to improve after giving an appropriate warning. Although the Trust had accepted that Mrs Jolly had misunderstood her role she was not offered training to address this. Instead Mrs Jolly was described as being “stuck in old secretarial ways”. The Trust had accepted that Mrs Jolly was a disabled person by reason of a heart condition. The tribunal found that there was a “symbiosis” between Mrs Jolly’s age and disability in the way that the Trust treated her and was found to have also subjected her to disability related harassment. In circumstances where the dismissal was tainted by discrimination Mrs Jolly was also found to have been unfairly dismissed.

Comments

The case is an object lesson to employers in how not to approach capability issues with older workers. In particular Mrs Jolly appeared to be subject to age related stereotyping and inadequate regard for her actual abilities. She was treated with little dignity or respect and was not given an opportunity to improve through provision of additional training which the Tribunal considered would have been extended to younger employees. It was moreover clearly unfortunate that the Trust accused her of being responsible for “a third serious incident in two years” when its witnesses were unable to identify the first two serious incidents and the findings of “catastrophic failure” were found not to be supported by the evidence.

In circumstances where the Tribunal was unpersuaded that the treatment was not in any way related to age the Trust fell victim to the “reverse burden of proof” which applies in discrimination cases provided a Claimant can prove facts from which discrimination could potentially be inferred.

The Tribunal may be subject to the criticism that it has potentially confused unreasonable treatment with discriminatory treatment and it may not have applied the correct legal tests. The decision could be subject to appeal to the Employment Appeal Tribunal, however, the case should nevertheless serve as a useful warning to employers as to how such processes can go very wrong. Subject to any appeal the compensation to be awarded to Mrs Jolly will be assessed at a later date. Clearly the case has resulted in both financial and reputational exposure for the Trust.

Guidance

It is perhaps timely that ACAS has recently launched its latest easily digestible guidance for employers in avoiding age discrimination issues. The guidance includes general guidance as well as useful sections on “key points for the workplace”, “ten obligations for employers” and “Age discrimination top ten myths”. The guidance is certainly a useful starting point for employers wishing to avoid the sort of scenario which played out in the Jolly case although we would suggest that specific advice should always be taken if you are dealing with a particular age discrimination challenge.

If you have any queries regarding the issues discussed above, please contact a member of the Stronachs Employment Team.

Eric Gilligan  Partner

Chambers Leading Firm 2019

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