Age discrimination has featured in the news multiple times this month. Acas published new guidance on age discrimination at work, and an 88-year-old medical secretary, Eileen Jolly, became the oldest person ever to win an age discrimination claim. According to Acas, age discrimination is one of the most common forms of unfair treatment at work. Both younger and older employees across the UK have reported experiencing discrimination based on their age, so it is an issue which employers should be aware of.
The guidance (which can be found here) aims to support employers in preventing unfair treatment at work and eradicating bias against older and younger workers. The guidance features information on activities and processes in the workplace where there is an increased risk of age discrimination happening. A number of pitfalls are highlighted, including:
managers must not suggest, assume or try to force an employee to retire, although any employee can be asked (albeit carefully) about their work plans in the short, medium and long term from a workforce planning perspective (for example, during an appraisal);
when recruiting, it is preferable to set out the types of experience required for a post, rather than to require a number of years' experience; and
managers should not allow any bias to play a part in decisions regarding promotions or when allocating training opportunities – assumptions should not be made about an employee based on their age, including in relation to their ambitions and training needs.
The guidance also advises on the risks of using ageist language and stereotyping within the workplace, and when an employer may lawfully treat an employee differently because of their age.
Jolly v. Royal Berkshire NHS Foundation Trust
While the Acas guidance will help employers understand how they should act towards their employees, the recent employment tribunal decision in Jolly v. Royal Berkshire NHS Foundation Trust provides a good example of "what not to do".
The Claimant, Ms Jolly, commenced employment with the Respondent when she was 61 years old and she worked for the Trust until 2017, by which time she was in her mid-eighties.
From 2005 to 2015, the Claimant worked as a medical secretary for a consultant surgeon, Mr Smith. As part of this role, the Claimant kept a list of patients who were waiting for non-urgent surgery. When patients who were waiting for non-urgent surgery phoned the hospital, the Claimant would check that they were on the list and confirm their contact details.
In addition, there was a separate non-urgent surgery list which was maintained by another employee. There was a rule that patients should not wait more than 52 weeks from their initial referral for surgery. It was this other employee's responsibility to identify any patients who had been waiting nearly 52 weeks and to alert Mr Smith if this was the case. Mr Smith gave evidence that the Claimant had no responsibility for identifying patients who were close to the 52-week limit. He was clear that her work was reliable and meticulous during her time working for him.
In 2015, the Claimant's role changed and she received very little training in connection with her new role. Around this time, the other employee who was responsible for the non-urgent surgery list left the Respondent's employment.
In September 2016, the Claimant arrived at work and was informed that she was being investigated and put on "special leave" (which the Tribunal found was, in fact, a suspension). She was told to collect her belongings and was escorted from the premises.
The Claimant subsequently received a letter informing her that the Respondent was concerned about her capability due to "a third serious incident in two years regarding 52-week breaches of the referral to treatment standard in the waiting list." The Claimant had no idea what the first two serious incidents were. Even the Respondent's witnesses could only identify one previous incident, and they all agreed that it was not the Claimant's fault.
No investigation was carried out to establish whether the Claimant had, in fact, been responsible for any breaches. Nevertheless, the capability process proceeded and the Claimant was invited to an interview. She was unable to obtain union representation for the meeting (as she was given only two days' notice) and requested that it be postponed. The interview was rescheduled (this time with four days' notice), but the Claimant had a pre-arranged medical appointment on the proposed date. The Respondent refused to rearrange the interview again and it proceeded without the Claimant present. This was, as the Respondent's line manager eventually accepted, unreasonable.
The Claimant was later invited to a review meeting and subsequently dismissed on the grounds of her "catastrophic failure in performance". The Respondent decided that providing further training to the Claimant would not be appropriate.
The Claimant appealed against her dismissal, but the Respondent initially failed to reply and later claimed that the Claimant's appeal had been submitted out of time. The Claimant pointed out that her appeal had, in fact, been made in time, but she never received a response and her appeal was never heard.
Ultimately, the Tribunal decided that the Respondent had treated the Claimant less favourably on the basis of her age and also on the basis of disability (the Claimant had arthritis and a heart condition). There was no basis to find that there had been a catastrophic failure in her performance. She had not been offered training where it would have been appropriate (and the reason for this was inferred to be her age) and the Respondent had not followed its own capability procedure. Her dismissal was "tainted by discrimination" and the judge commented that there was suspicion that the Claimant had been a scapegoat.
The Acas guidance and the Jolly case both serve as a reminder of the importance of treating employees consistently, no matter what their age. Employers of all sizes should ensure that their managers are aware of the high-risk areas outlined in the guidance and review their recruitment and performance management procedures to ensure that they are not discriminatory.