Eileen Jolly has become the oldest person to win an age discrimination case.

She successfully sued her former employer for unfair dismissal on the grounds of age, disability and breach of contract. The elderly lady was escorted out of her office by security staff in November 2016, before being sacked in January 2017 over concerns about her frailty.

One colleague had commented during the hearing that “it was always a concern that you could walk in and find Eileen dead on the floor”.

Eileen Jolly v Royal Berkshire NHS Foundation Trust

Mrs. Jolly joined the East Berkshire College of Nursing and Midwifery in 1991 and remained employed by the various changing entities that became the Royal Berkshire NHS Foundation Trust until her dismissal in 2017.

She worked as a medical secretary to a surgeon who undertook various urgent and non-urgent cancer surgeries. Part of her remit was to keep a list of people waiting for non-urgent surgery, separate from the hospital’s waiting list to alert the surgeon when patients were coming close to breaching the 52 week waiting time from their initial referral.

In 2015 the record system was made electronic and the Mrs. Jolly’s job title was changed from ‘medical secretary’ to ‘patient pathway coordinator’. It was not explained clearly to her what this change of role entailed. She was required to attend waiting list training. However it was reported that the session was short and had to be rescheduled as the trainer could not tell employees how to use part of the system. The rescheduled session ultimately did not take place.

Mrs. Jolly was invited to meet with the director of operations on 08 September 2016. He informed her that she was being investigated and she was put on ‘special leave’. She received a letter dated 29 September 2016 that detailed concerns about her capabilities within her role due to a “third serious incident in two years regarding 52 week breaches of the referral to treatment standard in the waiting list”. She said she had no idea what these breaches were.

The investigator attempted to interview Mrs. Jolly multiple times, however she was unable to attend for various reasons and he decided to proceed in her absence. The investigator interviewed some of Mrs. Jolly’s colleagues who made comments about her age, health and mobility, which were incorporated into the investigation report and which Mrs. Jolly found hurtful.

Mrs. Jolly raised a grievance which her employer failed to deal with.

When Mrs. Jolly did meet with management in January 2017 she was dismissed for failing to carry out her duties in managing the waiting list. She appealed against the decision to dismiss her, however, she was incorrectly told that her appeal was out of time and Mrs. Jolly’s letter pointing out the Respondent’s mistake was ignored.

She brought claims for unfair dismissal, discrimination of the grounds of age, disability discrimination and breach of contract successfully.

Employment Tribunal decision

The Tribunal found, amongst other things, that there was no evidence that there was an issue with Mrs. Jolly’s capabilities, that the Trust failed to investigate comments made by Mrs. Jolly’s colleague’s which constituted acts of age and disability discrimination, and that Mrs. Jolly had been discriminated against because of her disabilities and her age in breach of the Equality Act 2010. It also found a comment regarding “old secretarial ways” meant that she was treated differently to a younger comparator with regard to providing training.

A further hearing to consider remedy will take place in October 2019.

Comment

This case highlights the potential risks involved when an employer makes assumptions about an employee based on their age. When the remedies hearing takes place in October, Mrs. Jolly is likely to receive a substantial award for injury to feeling as a result of the way her employment was terminated. She will also be compensated for any loss of earnings she has suffered.

Employers should conduct thorough investigations when issues are raised by colleagues regarding an employee’s perceived lack of competence. Investigations, should be balanced and look at evidence not only supporting the allegations, but also for evidence disproving the allegations.

Employers should not discriminate against a person because of disability, age or any of the other protected characteristics under the Equality Act 2010.

Failure to provide training to an employee due to their age is specifically mentioned in the new ACAS guidance on age discrimination.