Oldest person wins age discrimination claim

We examine a very recent Employment Tribunal case where a secretary in an NHS trust is thought to be the oldest person to succeed in claiming age discrimination.

The facts

In the case of Jolly v Royal Berkshire NHS Foundation Trust, Eileen Jolly had continuous service with the Trust from 1991 until her dismissal in early 2017, when she was 87.

As part of her role as a medical secretary she was responsible for keeping a list of patients who were waiting for surgery. This was separate to the hospital’s main waiting list. In 2015 she was informed that her role was now ‘patient pathway coordinator’ and the waiting list records were now being handled electronically. She was never told what changes the new role involved, and she was sent on waiting list training, but part of the training had to be postponed because the person running the session couldn’t tell the staff how to operate an aspect of the system. That part of the training was never rearranged.

Ms Jolly was informed in 2016 that she was under investigation. She was told to collect her personal belongings and leave the premises, and was put on paid leave. She was sent a letter saying that there was a capability issue due to a “third serious incident” in relation to the waiting list. She said she had no idea whatsoever what the first two issues were, and even in relation to the third incident she had not been provided with details.

An investigation was undertaken, but it was limited and did not involve an interview with Ms Jolly herself. The investigating officer included in his report comments about Ms Jolly from other members of staff, including about her age and ‘frailty’.

She was eventually dismissed in early 2017 for failing to carry out her duties in managing the waiting list. She appealed, but the appeal was not dealt with, so she brought claims to the Employment Tribunal for unfair dismissal, breach of contract, age discrimination and disability discrimination.

The decision

At the Employment Tribunal all of Ms Jolly’s claims were upheld. Given the issues with the process, it is not surprising that the dismissal was found to be unfair. The Tribunal found that she had been ‘humiliated’ by the experience and that the training she received had been inadequate. The Tribunal also felt that there was a ‘symbiosis’ between Ms Jolly’s age and her disability, and that there was ‘no attempt’ by the Trust to adhere to the spirit of its own capability procedure. The comments made by colleagues were hurtful, and had been aimed at Ms Jolly’s age and health as well as perceptions of her age and health. The Tribunal said that there was a suspicion that the Claimant had been a scapegoat for the issues with the waiting list.

A remedy hearing has been arranged for October 2019 in order for the Employment Tribunal to determine the compensation payable to Ms Jolly. It will be interesting to see how they assess her losses, in particular how long they consider she would have continued to work if she had not been dismissed.