88 year old successful in age discrimination claim? Jolly good!

The aptly named Mrs Jolly will no doubt be beaming with the news that she was successful in her recent employment tribunal claim. Mrs Jolly worked for the Royal Berkshire NHS Foundation Trust for 25 years as a medical secretary before she was eventually dismissed in 2017. At this time, Mrs Jolly was at the spritely age of 86 years old and it was known that she was suffering from both a heart condition and arthritis.

In 2015, Mrs Jolly was informed that her role had changed. She was to become a ‘patient pathway co-ordinator’. As a result of this change, she was required to attend waiting list training, given by a colleague. The training received was short and inadequate. The trainer did not fully understand the whole process and so training was due to be rescheduled. However, this never materialised. Nevertheless, in any event, the Claimant more or less carried on with the responsibilities of her old role as a medical secretary.

In September 2016, Mrs Jolly was summoned to see the Director of Operations at the Trust. She was then informed that she was being investigated and placed on ‘special leave’, which was essentially a suspension. She was told to collect her belongings and leave the premises, during which time a colleague was overheard stating that ‘[Mrs Jolly] won’t be coming back’. Later that month, she received a letter detailing 3 ‘serious incidents’ which she was not aware of and nor had these been raised with her. When invited to an interview, with 2 days’ notice, she did not have time to arrange for her union representative to join her. As such, she requested a postponement. This was agreed, but the rearranged date fell at the same time as a pre-arranged medical appointment. She also had pre-booked holiday around the same time. No such meeting was rearranged for Mrs Jolly. Instead, they chose to provide a series of questions for her to answer which she could not do until after her holiday. Despite being a capability process, the investigator recommended that the matter proceed to a disciplinary hearing. Later, Mrs Jolly was invited to a formal meeting under the capability procedure which accused her of ‘multiple patient breaches’ and warned her that she could be dismissed. The policy for the Trust stated that ‘a higher level of sanction, up to and including dismissal, may be considered’ where there is ‘a catastrophic failure in performance’.

Mrs Jolly then raised a grievance concerning her treatment and the process followed. The Trust responded to this and stated that any issues could be taken up at the capability meeting. After the meeting, which Mrs Jolly did not attend, it was decided that she should be dismissed. They decided that there was a catastrophic failure and that ‘retraining or down banding [Mrs Jolly] would not enable her to perform in her role as she was resistant to the current models of working’. Mrs Jolly appealed against her dismissal, but they refused to hear it on the basis that it was out of time. It wasn’t. Mrs Jolly subsequently brought a claim against the Trust.

At the ET, Mrs Jolly was successful with all of her claims and the ET delivered a scathing review of the Trust, pointing out the following flaws in the decision to dismiss her:

• there was no evidence of an issue with Mrs Jolly’s capability;
  
  
• there was no suspension mechanism;
  
  
• the investigator failed to look into matters raised by Mrs Jolly in her favour;
  
  
• the process did not follow the policy;
  
  
• there were a number of discriminatory comments made about her (including that she had ‘old secretarial ways’);
  
  
• the capability procedure was more like a disciplinary procedure;
  
  
• they unreasonably refused to postpone the meetings;
  
  
• they did not respond to her grievance; and
  
  
• they did not allow an in-time appeal.

All in all, the Trust made a number of monumental errors throughout the process to dismiss Mrs Jolly. Ironically, one could point out that both the investigator and decision maker made catastrophic failures in performing their duties. As a result, Mrs Jolly will be in for quite a large payout in October after the remedy hearing.

What does this mean for you or your business, and what should you be doing now?

There are many points to take from this case. It is quite alarming how many errors were made by the Trust throughout the process. Importantly, they didn’t even follow a proper process. Have your policies checked, and if they are ok, follow their procedures to avoid leaving yourself at risk.

It is also important to make sure that evidence gathered is properly reviewed. Here, it was found that the capability officer took into account discriminatory statements which influenced the decision to dismiss. Also beware of making assumptions. Even if someone’s performance is lacking, never assume that this is because of their age, and never assume that someone cannot be trained on the same basis. ACAS guidance has recently been released relating to age discrimination, a link to which can be found below.

Recommended Reading

The full judgment from the ET can be read HERE.

ACAS guidance in relation to age discrimination can be found HERE.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.