Highlighting legal requirements but also offering advice on how best to comply with the Equality Act 2010 provisions protecting employees against discrimination based on age, the Acas guidance is aimed at employers, managers, HR professionals, employees, trade union representatives and job applicants.

Through the provision of examples outlining forms of discrimination, it presents necessary actions to prevent bias or unfair treatment of any ilk on the basis of age. Methods of dealing with age discrimination are also presented, alongside supplementary best practice guidance and the legal parameters pertaining to such cases.

The identification of age discrimination is a key concern of the document, alongside the many forms it may take, including but not limited to; direct discrimination, indirect discrimination, harassment and victimisation.

There are, it suggests, stages at which age discrimination is more likely to take place, including during the recruitment process, in the time surrounding promotion considerations and upon dismissal, to name but three. To avoid bias, preconceptions or unfair treatment both within and beyond these, it directs readers towards existing documentation from the Acas archives (namely Guide – Age discrimination key points for the workplace; Factsheet – Age discrimination ten obligations for employers; and Factsheet – Age discrimination top ten myths).

It brings to mind a recent judgement that deals with many of the age discrimination issues raised in the new guidance, namely that which was delivered by the Reading Employment Tribunal in a claim for age and disability discrimination in the case of Eileen Jolly (86) v Royal Berkshire NHS Foundation Trust.

Mrs Jolly’s capabilities as a medical secretary were investigated in 2016 by the Trust’s Director of Operations, the result of which was the lady in question being placed on ‘special leave’ and escorted from the building, so effectively suspended.

While the afore-mentioned investigation was taking place, the tribunal heard the director in question heard a number of discriminatory comments, including but not limited to: her being too p;d to walk the length of the building and being old and frail because of her arthritis. When additional training was suggested as an alternative outcome, the director was heard to state that this was futile, as she was “stuck in old secretarial ways”.

The resultant capability meeting was held in Mrs Jolly’s absence, as she had asked for it to be moved so she could attend a medical appointment, but this request was refused and the hearing went ahead with Mrs Jolly listed as “failing to attend”.

A subsequent grievance raised by Mrs Jolly was ignored and her employment was terminated on the grounds of capability concerns. She appealed the decision but was wrongly told that she had done so too late.

Mrs Jolly issued a claim in the Tribunal in relation to age and disability discrimination, and it was ruled that there was no evidence that there was an issue with Mrs Jolly’s capabilities, alongside a multitude of other failings.

A remedy hearing is listed for 14 October 2019, where the Tribunal will consider the appropriate compensation to be given to Mrs Jolly.

Future implications for employers

The new Acas guidance specifically mentions failure to provide training to an employee due to their age. Furthermore, it is imperative that employers carefully follow their own procedures when investigating capability or disciplinary issues and not to allow discriminatory views to influence the process.

It is essential that employers do not discriminate against a person because of disability, age or any other protected characteristic. When making decisions, employers must be able to show with absolute clarity what evidence has been taken into consideration, and for that matter, that which has not.

Let it be noted in particular that in the case of Mrs Jolly, the Tribunal concluded that the discriminatory comments were taken into account. This is because although the manager gave verbal evidence to the contrary, the decision letter was silent and as a result the Tribunal inferred that he had in fact taken them into account.

If you have any questions about this or any other legal matters discussed on the Britton & Time website, please don’t hesitate to get in touch.

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