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You’re never to old to win a discrimination case
An 88-year-old hospital secretary has become the oldest person in the UK to win an age discrimination case after she was sacked when colleagues complained about her age and “frailty”

The secretary, Eileen Jolly was apparently “humiliated” and “degraded” after the Royal Berkshire NHS Foundation Trust dismissed her for allegedly failing to upload details of cancer patients into a new electronic database, a Reading tribunal heard.

The Judge said that he had a suspicion that Jolly was a “scapegoat” and cited evidence she had received inadequate training which could have led to the mistake on which her dismissal was based.

Jolly had been an employee of the NHS for 26 years and remained in continuous employment by the various changing entities that became the Royal Berkshire NHS Foundation Trust until her dismissal in 2017. According to media reports she had not taken a sick day in 10 years, despite having suffered a heart attack.

In 2005, she began work as a medical secretary to Brendan Smith, a surgeon who undertook breast cancer surgery and non-urgent surgery. One of her duties in this role was to keep a list of people who were waiting for non-urgent surgery. This was separate from the hospital’s waiting list and existed mainly to alert the surgeon when patients were getting close to breaching the 52-week waiting time from their initial referral.

However, in 2015, the system changed to an electronic patient record (EPR) system. Jolly was informed her role had changed from medical secretary to patient pathway coordinator – but it was never explained what the difference was – and she was required to attend waiting list training. The session was apparently “quite short” and had to be rescheduled because the trainer could not tell employees how to use part of the system. The rescheduled session did not take place.

In September 2016 she was suspended pending an investigation and was sent a letter stating concerns about her capabilities citing three breaches of the 52-week waiting list for referral to treatment. She was not given any details of the cases and did not know what the earlier ones referred to were about.

The tribunal heard that the deputy patient pathway manager, attempted to interview Jolly multiple times, however there was no initial interview and a report was submitted in her absence. The manager also collected and used feedback on Jolly from her colleagues, including about her age and mobility, which the judge said were “inappropriate” and “discriminatory”.

When she eventually had her meeting with management in January 2017, she was dismissed for failing to carry out her duties in managing the waiting list. Jolly unsuccessfully appealed the decision.

The tribunal ruled Jolly had been unfairly dismissed, and her discrimination claims on the grounds of age, disability discrimination and breach of contract also succeeded.

The lessons to be learned from this case are that all aspects must be considered before dismissing someone on capability grounds – irrespective of age; has the employee been given clear direction? Has she been given the appropriate training? Have any assumptions been made about her abilities because of her age? And if there are disability issues, have you made reasonable adjustments to allow the employee to do her job?

If you have an employee you are concerned about who is not performing adequately and would like some advice, please get in touch. But in the meantime, Acas has produced a factsheet with its top 10 age discrimination myths. See http://www.acas.org.uk/media/pdf/p/l/Age_discrimination_top_ten_myths.pdf for more information
Posted on 24 Feb 2019


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