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Are You Up to Date With ACAS Age Discrimination Guidance?

Mar 12 2019 | Employment Law

by Paul Britton

by Paul Britton

Director and Solicitor

In this article

Example of an age discrimination case

To avoid bias, ACAS directs readers towards existing documentation found in its archives.

This brings to mind a case that deals with many of the age discrimination issues raised in the new guidance. This is the case of Eileen Jolly (86) v Royal Berkshire NHS Foundation Trust. It was a claim for age and disability discrimination in 2016.

The Trust’s Director investigated Mrs Jolly’s capabilities as a medical secretary. He placed her on ‘special leave’ and had her escorted from the building. This, in effect, was a suspension.

While the investigation was taking place, the tribunal discovered an important fact. The company’s director had overheard discriminatory comments about Mrs Jolly. These included comments about her being old and frail. Management suggested additional training for Mrs Jolly. However, the director stated that this was futile, as she was “stuck in old secretarial ways”.

The company held the following disciplinary meeting in Mrs Jolly’s absence. Despite asking for a change of date due to a medical appointment, the meeting still went ahead. They listed Mrs Jolly as ‘failing to attend.’

Mrs Jolly’s grievances were not taken into account by the management. They later terminated her on grounds of capability concerns. She appealed the decision but was told that she had done so too late.

Mrs Jolly issued a claim in the Tribunal. The basis of her claim on age and disability discrimination. The Tribunal ruled that there was no evidence that there was an issue with Mrs Jolly’s capabilities. This came alongside a multitude of other failings.

In October 2019, Mrs Jolly received compensation of £200,000. This all came from the age discrimination she faced under the NHS.

Future Implications for Employers

The new ACAS guidance mentions failure to provide training to an employee due to their age. Employers must follow their own procedures when investigating capability issues. Furthermore, they should not allow discriminatory views to influence the process.

Employers must make sure their decisions are not based on a protected characteristic. When making decisions, employers must be able to show what they based their decision on. The evidence must be indicative of this.

Discriminatory comments should never be taken into account. In Mrs Jolly’s case, it was clear that the director had taken the comments on board. Thus, this influenced his decision to terminate her position.

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