The recent Employment Tribunal decision in Jolly v Royal Berkshire NHS Foundation Trust has concluded that Mrs Jolly, aged 88, has been unfairly dismissed by her employer after over 25 years of service. Mrs Jolly now awaits a hearing to determine remedy to be awarded to her.
Mrs Jolly was employed by Royal Berkshire NHS Foundation Trust since 1991 undertaking administrative roles.
In 2015, Mrs Jolly’s role changed from ‘Medical Secretary’ to a ‘Patient Pathways Co-ordinator.’ On her role change, Mrs Jolly attended training ran by a colleague. The training provided was limited due to the trainer needing to reschedule. The training was not rescheduled, Mrs Jolly did not receive any further training into her new role.
In 2016, Mrs Jolly arrived at work to be told to collect her belongings and leave immediately since investigations were required to be undertaken into allegations that she had committed three breaches.
The hospital arranged a meeting for Mrs Jolly to attend. Mrs Jolly’s trade union representative was unable to attend due to the meeting being such short notice. The newly arranged date was also inadequate since Mrs Jolly had a medical appointment. The hospital decided not to reschedule the meeting, instead Mrs Jolly was asked to complete several written questions whilst on her pre-booked holiday.
Following this, Mrs Jolly was invited to a formal meeting whereby she was accused of causing multiple patient breaches and was warned that she may be dismissed.
Mrs Jolly submitted a grievance in response, stating that she had been discriminated against due to her age. Despite her grievance, Mrs Jolly was dismissed.
Mrs Jolly raised an appeal, albeit out of time, and it was refused hence did not proceed.
Mrs Jolly brought a claim to the Employment Tribunal for Unfair Dismissal on the grounds of age and disability discrimination.
Mrs Jolly was 88 years of age and had a heart condition.
The Employment Tribunal Decision
Mrs Jolly’s claims succeeded.
Mrs Jolly did have a disability within the meaning of s6 Equality Act 2010.
Mrs Jolly had been unfairly dismissed and discriminated against on the grounds of age and suffered discrimination. She had been treated unfavourably in comparison to other employees without the protected characteristics, namely a younger employee or an employee without a disability.
The court held that in any event the dismissal would have been rendered unfair since the Respondent failed to undertake a fair procedure when dismissing the Claimant. The employment tribunal judge stated, “going beyond the failure to grant an appeal was unfair.” Additionally, “the decision to dismiss the Claimant was not reasonable” because despite Mr O’Donnell being aware that the claimant had a “fundamental misunderstanding of her role”, there was a failure to provide relevant training to allow the Claimant to adjust to her new role.
The employment judge, Andrew Gumbiti-Zimuto, ruled that Mrs Jolly’s grievances were not addressed and that she had been discriminated against on the grounds of age. He judged that in the lack of training offered she had been treated differently to other staff and noted a reference by one manager to her being stuck in “old secretarial ways”.
The judge ruled that inappropriate and hurtful comments had been made about Jolly’s age and health conditions and her dignity had been violated, in short, her dismissal was “tainted by discrimination”. Even without this, the judge said, the dismissal was unfair because procedures – particularly around the capability review and the failure to hear her appeal – had been incorrectly followed.
A hearing to consider the claimants remedy will take place on 14th October 2019.
The importance of the Employment Tribunal’s decision to employers
In 2011 the default retirement age was fully abolished in the UK. Employers are unable to force an employee to leave their employment when they reach a certain age.
In this case, Mrs Jolly’s employer assumed that she was unable to fulfil her new role as ‘Patient Pathways Co-ordinator’ due to the alleged 3 breaches, therefore dismissed her.
This case emphasises the importance that:
1. An employer cannot force an employee to leave his/her employment due to their age due to the change in the Law in 2011. This would constitute age discrimination.
2. An employer must provide relevant training to all employees allowing them to adjust to their new role. The employer in this case failed to provide the relevant training to Mrs Jolly which denied her with the ability to adapt to her new role as ‘Patient Pathways Co-ordinator’ and therefore resulted in the alleged breaches.
3. When dismissing an employee, the employer must undertake a fair procedure. Failure to carry out a fair procedure will render the dismissal unfair automatically. Mrs Jolly was denied a right to appeal her dismissal. This was enough to render her dismissal unfair.
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