The default retirement age was abolished in 2011 and age discrimination outlawed by the Equalities Act 2010 meaning (in theory if not always in practice) employees can continue to work for as long as they are able to. Despite this, many older people are forced out of their jobs by employers who make assumptions about what they can and can’t do.
Mrs Jolly faced such treatment at work and at age 88 became the oldest person to win an age discrimination claim in the UK.
Mrs Jolly started working at the for the Royal Berkshire NHS Foundation Trust in 1991 aged 61. Her role changed and evolved and was eventually appointed as a “patient pathway co-ordinator”. She was given some training but it was inadequate and she continued to do many of the duties of a medical secretary.
She was told she was being investigated for three breaches relating to NHS waiting lists and was immediately suspended and escorted off the premises. As she was leaving she heard a colleague say that she “won’t be coming back”.
She was later informed in writing that she was being investigated under the hospital’s capability procedure and was given two days’ notice to attend a meeting. Mrs Jolly could not attend due to her union representative not being available and it coinciding with a pre-booked holiday. Despite this, the hospital refused to postpone the meeting again because, it said, she’d had “ample time to make herself available”. Instead, she was given a list of questions to reply to in writing.
Mrs Jolly’s submitted a grievance alleging that she was being discriminated because of her age. She said she hadn’t been trained properly and the consultant she supported was happy with her work (which was true).
Despite this, the Trust dismissed her. It said it wasn’t appropriate to give her time to improve or to give her training. Mrs Jolly appealed, but the Trust, in error, said she hadn’t done so in time.
Mrs Jolly claimed she had been subjected to age and disability discrimination (she had a heart condition and arthritis) and had been unfairly dismissed.
What did the Tribunal decide?
She was successful with all of her claims.
The Tribunal found that assumptions that the Trust made about her age and health was the driving force behind her dismissal.
Further, she had been treated less favourably than a younger person, or one who did not have her disabilities, because:
- The investigator’s report included allegations made by Mrs Jolly’s colleagues that she was “frail”, would have trouble walking the length of the building and had “old secretaries’ ways” which influenced the decision maker
- The Trust ignored Mrs Jolly’s grievance and refused to hear her appeal
- There was no catastrophic failure in Mrs Jolly’s performance. She had genuinely misunderstood her role and should have been offered training to help her adjust
- The Trust had no right to suspend Mrs Jolly.
How much compensation will Mrs Jolly receive?
We don’t yet know how much compensation Mrs Jolly will be awarded until the remedy hearing in October – unless the sides agree a settlement.
However, her award could be substantial. She had 27 years’ service, was entitled to 12 weeks’ notice pay and says she wanted to continue to work until she was 90. So, potentially, she could claim loss of earning until that age as it is very unlikely she will get another job.
She will also receive an award for injuries to her feelings. The circumstances leading up to her dismissal left her depressed. She felt a deep sense of shame about what had happened, and initially, pretended to her husband and family that she had retired. She was very upset by how she had been treated and the comments of her colleagues.
To make matters worse for the Trust, a Tribunal could increase her award by up to 25% because it failed to follow the ACAS Code of Practice.
You can read the full judgment here.