April 18, 2019

Age Discrimination: Eighty Eight Year Old with Twenty Eight Years of Service Dismissed by the NHS

Research by the Office for National Statistics reveals that by the mid 2030’s half of all adults in the UK will be over 50 years of age.

However, despite this statistical evidence, there are real barriers to older people entering and remaining in the workplace.

Eileen Jolly-v-Royal Berkshire Hospital 2018

A recent age discrimination case was brought to tribunal. It gives us an indication of the kind of challenges older employees face in the workplace. Eileen Jolly, an eighty eight year old secretary at the Royal Berkshire Hospital, was dismissed from her post in January 2018. She was dismissed after failing to upload details  into a new electronic database. The data was for cancer patients awaiting non-urgent breast reconstruction surgery. The error was partly blamed for fourteen women having to wait more than a year for surgery.

Employers should consider all factors when dismissing an employee for capability including any potential bias on account of age

Mrs Jolly insisted she had not been trained to use the patient record system. The breast surgeon Mrs Jolly worked for, Brendan Smith, described her as ‘reliable and meticulous’. He accused hospital managers of bullying. He said she was being used as a “scapegoat” for management failings.

Eileen had worked for the NHS since 1991. She is believed to be the oldest person ever to sue an employer for age discrimination after taking the hospital trust to a tribunal. She said it had been her intention to continue to work for as long as she could. Potentially until she was at least ninety years old.

She had a cardiac arrest at work in 2004 when she had to be resuscitated by a surgeon. Despite having a heart condition she had not taken a day off sick in the past ten years. Referring to her manager, she said: “I felt as though he had assumed that at my age and because of my health I was a liability and incapable of change, and had to go”.

She claimed that “unpleasant remarks” about her age and health were made in an internal report compiled by a manager. Mrs Jolly felt “humiliated” and “degraded” when she was dismissed from her post. She was particularly hurt that one colleague was quoted as saying: “It was always a concern that you could walk in and find Eileen dead on the floor.”

Royal Berkshire NHS Foundation Trust admitted Mrs Jolly was unfairly dismissed as she was not given the chance to appeal. However, the trust insisted she was not sacked because of her age.

The Equality Act 2010 Protects Employees from Age Discrimination

The Equality Act 2010 protects employees from Age Discrimination. However, research by the Women and Equalities Committee reveals that it does not in practice, adequately prevent age discrimination. The Committee recommend the following steps in order to tackle age discrimination:

  • A mandatory duty to publish the age profiles of employees for organisations with over 250 employees. All jobs should be available on flexible terms as a default. The flexible terms should only be removed if an employer can demonstrate an immediate and continuing business case against doing so.
  • A governmental review of the decision not to implement s.14 Equality Act 2010, which prohibits combined discrimination claims based on age and another protected characteristic such as gender.
  • Greater availability of paid and unpaid leave for carers who are non-parents.
  • A greater role for the Equality and Human Rights Commission. In particular the Commission creating a new action plan to tackle age discrimination in recruitment, review the public sector equality duty and identify age discrimination claims which require legal support.

Actions such as these could be particularly powerful.  As with gender pay gap reporting it would bring the issue of age discrimination to the fore. It would put pressure on organisations to proactively address age discrimination within the workplace.

Next Steps

For regular updates on recent case law you can download a copy of our Employment Law and HR Legislation Guide here.

Moorepay customers who would like any specific advice around preventing age discrimination in their workplace should contact the Advice Line on 0845 073 0240.

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About the author

Donna Chadbone

Donna completed her post graduate studies in Human Resource Management (MCIPD) and then spent 7 years working as an in house HR Consultant in the corporate financial services sector. She has worked with a range of clients from the engineering, aerospace, manufacturing, service, leisure, education, construction and care industries.