Eileen Jolly became the oldest person at 88 to win a case after a hospital collected ‘discriminatory’ feedback from colleagues. She was sacked when colleagues complained about her age and “frailty”. She felt “humiliated” and “degraded” after the Royal Berkshire NHS Foundation Trust dismissed her for allegedly failing to upload details of cancer patients into a new electronic database.

The Judge added there was a “suspicion” Jolly was a “scapegoat”, and cited evidence she had received inadequate training, which could have led to the mistake.

In 2015, the system changed to an electronic patient record (EPR) system. Mrs. Jolly was informed her role had changed from Medical Secretary to ‘Patient Pathway Coordinator’ – although it was never made clear what this new role meant – and she was required to attend waiting list training. The session was “quite short” and had to be rescheduled because the trainer could not tell employees how to use part of the system. The rescheduled session ultimately did not take place.

The Tribunal ruled she had been unfairly dismissed, and her discrimination claims on the grounds of age, disability discrimination and breach of contract also succeeded. Her employer had not followed their own capability procedure. Her dismissal was “tainted by discrimination”, both age and disability.

Peter Stanway, our BackupHR™ legal expert comments:

This case demonstrates why ACAS recently published further guidance on age discrimination. They point out that age discrimination at work – treating someone unfairly because of age – is against the law other than in very limited circumstances. Age discrimination, also commonly called ageism, is one of the most common forms of unfair treatment at work. The employee age gap in some work places can now be 50 years or more.

Features of the protected characteristic of age under the Equality Act include: –

  • protection against unfair treatment because of someone’s actual age, or the age they are thought to be, or the age of someone they are associated with
  • protection against harassment because of age, and
  • different treatment because of age being allowed in very limited circumstances

Much of the problem comes from stereotyping, i.e. making assumptions about job applicants’ and employees’ capabilities, and likely behaviours because of their age.

Stereotyping can often lead to: poor decision-making when recruiting and promoting or deciding who gets trained; the de-motivation of existing staff who become aware of the stereotyping; and less trust among colleagues. The ACAS guidance and the Jolly case serve as a reminder about the importance of treating employees consistently, no matter what their age. Employers must ensure that their Managers are aware of the high-risk areas outlined in the guidance, and review their recruitment and performance management procedures, to ensure that they are not discriminatory.

Actions:

  • Avoid stereotyping – judge people on their job performance – not assumptions because of their age; like assuming that people are too old to learn new working practices and/or won’t do as well as someone younger.
  • Have different age groups in a team or project – shared goals can bring people together.
  • Encourage different age groups to swap ideas, knowledge and skills.
  • Educate Managers that age discrimination is not only unlawful, but is a disciplinary offence.
  • Adopt a “holistic approach”, and conduct proper investigations when an issue regarding an employee’s “perceived lack of competency” is raised.

I might also add that you should not invent daft job titles, and when peoples’ roles are changed, essential good quality training actually takes place.

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 a free initial chat on 01480 677980.