In the United Kingdom, the Advisory, Conciliation and Arbitration Service (Acas) serves as an independent body providing “free and impartial information and advice to employers and employees on all aspects of workplace relations and employment law.” Acas offers training, guidance, and conciliation and mediation services; maintains a helpline; and commissions research on workplace policy.
Acas has recently published new guidance on age discrimination. This update is timely in light of an age discrimination claim brought by a National Health Service (NHS) employee that caught the public’s attention.
The New Acas Guide
The Acas guidance is a useful practical guide for employers that provides a succinct, clear and simple summary through one of the most challenging areas for employment lawyers and HR professionals. Whilst not of legal force, the relevant tribunals may take the guidance into account when determining employee claims.
Amongst these myths, Acas highlights that there is no evidence that older employee are difficult to train and less able to learn new skills; Acas notes that provided training is organised, planned and coherent, employees adapt irrespective of their age.
The guidance cautions against making age-based assumptions about what employees are capable of, the impact of their health, and how they will behave. It also warns against assuming there is value in training younger staff and little or no value in training older employees.
The Case of Mrs. Jolly
Although the Acas examples appear to be a matter of common sense and basic employee relations, the recent tribunal claims brought by an NHS worker illustrates an employer apparently falling into a fairly obvious trap.
At the age of 88, Mrs. Eileen Jolly is thought to be the oldest claimant ever to succeed in an age discrimination claim. She started work with the NHS at the age of 61 in 1991. In 2015, she was told her role had changed to a patient pathway coordinator. She was required to undertake training on waiting lists in this new role. The training was delivered by a colleague and was, according to the tribunal, rather brief because the trainer was not fully up to speed on some parts of the training. The complete training was never re-scheduled.
In September 2016, Mrs. Jolly was summoned to a meeting where she was informed that she was being investigated and placed on special leave. She was instructed to collect her things and leave the premises. Unsurprisingly, the tribunal found that this special leave was in fact a suspension.
During a subsequent investigation into her ability at work, Mrs. Jolly was asked to provide written answers to questions whilst on holiday. At the start of 2017, she was dismissed for poor performance; the NHS concluded that retraining her would not enable her to perform as she was resistant to the current models of working. Yet, as the tribunal noted, that the consultant for whom Mrs. Jolly worked had no issues with her performance.
Mrs. Jolly appealed her dismissal, but the NHS erroneously told her it was untimely and refused to consider her appeal. She raised a grievance complaining about age discrimination but the NHS also failed to deal with those complaints.
The tribunal concluded that the dismissal was unfair and was because of Mrs. Jolly’s age. It found that the NHS’ consideration in its decisionmaking of comments made by Mrs. Jolly’s colleagues about her age, such as her ability to walk the length of the building, her frailty, and her difficulties in walking (she had arthritis) also amounted to age discrimination. These comments, the tribunal found, tainted the employer’s view of Mrs. Jolly’s performance. Other aspects of the NHS’ conduct towards Mrs. Jolly also amounted to age discrimination, such as failing to address her appeal challenging her dismissal.
This case serves well to emphasise the dangers of making assumptions based on a protected characteristic — in this case, age. Training and opportunities should be given to employees of all ages and it may very well be unlawful in the UK to assume, for example, that older employees are stuck in their ways and resistant to change, or that they are physically less able than younger employees.
Employers should ensure that they take seriously the complaints expressed by their employees. Due attention is particularly important when such concerns are in the form of an appeal against dismissal or a grievance complaining about discriminatory treatment.