You are never old to have fun, to learn a new skill or to see new places, and Mrs Eileen Jolly has shown that one of those new places could be the inside of an Employment Tribunal after she demonstrated this month that you are never too old to bring a successful age discrimination claim against your employer.
Mrs Jolly, born in 1930 was employed in 1991 by the East Berkshire college of Nursing and Midwifery, which later become Royal Berkshire NHS Foundation Trust. Now, aged 88 she has successfully brought a claim against her employer for unfair dismissal as well as discrimination on the grounds of age and disability; and breach of contract.
Mrs Jolly was held to be disabled within the meaning of s.6 Equality Act 2010 by reason of her heart condition and arthritis. Despite this, Mrs Jolly had not taken a day off work in the past ten years, and even returned after suffering a cardiac arrest at work in 2004, where she was resuscitated by a surgeon.
Mrs Jolly’s complaints stem from her dismissal in January 2017, which the Trust maintains had nothing to do with her age, and rather was based solely on the grounds of culpability for her failure to adequately maintain a database of patients awaiting reconstructive surgery.
Four months prior to her dismissal, Mrs Jolly was placed on ‘special leave’. She was told to collect her things and was escorted from the premises. At Tribunal it was held that ‘special leave’ (name aside) was indistinguishable from a standard suspension. The suspension was in place under to allow the Trust to carry out an investigation into her failure to follow standard processes.
Describing her suspension as awful, humiliating and degrading, upon leaving the office Mrs Jolly overheard a colleague commenting that ‘Eileen won’t be coming back’. She advised others that she had retired from her role as she was ashamed of the way she had been treated, and was later prescribed anti-depressants.
Mrs Jolly confirmed within the hearing that she had planned to continue working until she was at least 90 years old.
Whilst on suspension, Mrs Jolly received an invitation to a capability review meeting, which she was advised may result in her dismissal. She raised a grievance in response, confirming that she did not feel that she was underperforming in any way – drawing attention to the fact that inadequate training had been provided. She also confirmed that the Trust had not considered the work she carried out for her immediate boss, Dr Brendan Smith who subsequently stated at the hearing, that her work was ‘reliable and meticulous’. She contended that the true reason for her dismissal was due to her age.
The review meeting was re-scheduled numerous times after Mrs Jolly was unable to arrange for a union representative to accompany her, due to the short notice provided by her employer. Finally, the meeting went ahead in her absence after it was rescheduled to a day where Mrs Jolly could not attend due to a pre-arranged medical appointment.
After the capability review meeting, Daniel O’Donnell, the Patient Pathway Manager, dismissed Mrs Jolly on the grounds of her ‘catastrophic failure in performance, where damage had been caused to patients as well as potentially the Trust’s reputation’.
At the hearing Mrs Jolly successfully argued that the issues raised in relation to the database were attributable to a combination of computer errors as well as a demonstrable lack of adequate training. Further there was evidence that Mrs Jolly did not believe that the maintenance of said database was within her remit.
Following her dismissal, Mrs Jolly wrote to her employer setting out her grounds for appeal:
‘I do not believe that my capability has been properly or fairly assessed…I have been singled out and treated as if I am under-performing when in fact the consultant I work for does not feel that I am under-performing at all. I consider that the real reason that I am being treated like this relates, at least in part to my age, almost as if the expectation is that at my age I won’t be able to cope, which I strongly refute’.
Her employer refused to accept or hear her appeal, wrongly ruling it to have been submitted too late. The refusal to accept the appeal (which the Trust later conceded was made in time) meant that her dismissal was automatically unfair. The Trust maintains that age was not a factor in the dismissal and that even if an appeal had been allowed, then she would likely have been dismissed anyway.
At the hearing however, Employment Judge Andrew Gumbiti-Zimuto, ruled that Mrs Jolly’s grievances were not addressed and that her claims for age discrimination were successful. The judgment confirms that she was treated differently to other members of staff in respect of the lack of training provided. A comment from a manager was noted, which referred to Mrs Jolly as being stuck in her ‘old secretarial ways’.
It was held that there were procedural failures – in particular the refusal to allow Mrs Jolly’s appeal and the mishandling of the capability review process. The intended purpose of
capability review process is to allow the employee a chance to improve. This was not afforded to Mrs Jolly and the Judge held that the Trust made no attempt to ‘adhere to the spirit of the capability procedure’.
In addition, it was held that inappropriate and hurtful comments had been made about the health and age of Mrs Jolly, that her dismissal was ‘tainted by discrimination’ and that the
failure to reschedule her review meeting at her request due to a pre-arranged medical appointment was discriminatory.
A remedy hearing is scheduled for the 14th October, where she will learn how much compensation she will be awarded.
The full judgment is available to read here.