The Age Old Question – When Is There Age Discrimination?

Author:Mr Séamus Given and Helen Webb
Profession:Arthur Cox

Employers and courts alike continue to be vexed by issues relating to age as a ground of discrimination. This is not surprising given culturally there is still a level of acceptance regarding "banter" or comments about someone's age.

Most of us (at least those over a certain age) have received a birthday card making a joke about our increasing age and subsequent capability or looks! The recent English case, Jolly v Royal Berkshire Hospital, is an excellent example of an employer failing to address age discrimination and illustrates how not to conduct a capability procedure; it warrants taking a closer look.

The facts - what happened?

Mrs Jolly worked from 1991 until 2015 as a medical secretary, and subsequently between 2015 and September 2016 as a patient pathway coordinator, until she was suspended by her employer, escorted from the premises, investigated under a capability procedure and ultimately dismissed. In 2016, Mrs Jolly was 86, and suffered from a heart condition and arthritis.

The follow up letter from the Director of Operations stated Mrs Jolly was being investigated over a concern about her capabilities 'due to a third serious incident in two years' regarding administration of the hospital waiting list. Here, the Employment Tribunal points out that Mrs Jolly had no idea what the first two incidents referred to were as no serious incidents had been raised with her previously and indeed "none of the Respondent's witnesses were able to identify the first two serious incidents..."

The manager conducting the investigation contacted Mrs Jolly to arrange an interview four days later. Mrs Jolly sought to postpone the meeting as she could not get union representation. When a second date of another four days later was offered, Mrs Jolly sought to postpone again due to a pre-arranged medical appointment, the fact that she still could not obtain union representation, and because she was about to go on holiday. The manager's view was that the capability meeting should go ahead without her and a report be prepared in her absence. He considered that Mrs Jolly had plenty of time to rearrange her medical appointment, given she had been suspended. The manager subsequently decided he should obtain Mrs Jolly's input and sent her some questions which she received and responded to on holiday.

A part of the investigation, the manager spoke to a number of Mrs Jolly's colleagues. Her colleagues made a number of discriminatory comments including: she was...

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