Age discrimination in the workplace: the 88 year old secretary

In the news this week is the 88 year old secretary who was employed by a National Health Service trust until she was sacked. The employee asserts that her dismissal was down to age discrimination whereas her employer maintains that she was sacked on the grounds of culpability for the failure to add the names of patients to a database of those awaiting reconstruction surgery. 

What is not in dispute is the fact that 88 year old Mrs Eileen Jolly is the oldest person to bring an employment law claim for age discrimination and secondly her employer accepts that Mrs Jolly was unfairly dismissed. That is because she was not given the opportunity to appeal against the decision to terminate her Employment. However, her employer maintains that Mrs Jolly’s sacking had nothing to do with her age. 

Top London employment law solicitors will have to wait for the outcome of the employment law tribunal hearing as the tribunal panel has deferred their judgement on the case. The reported facts of the case do however emphasise the need for all employers and their human resources departments to comply with their own procedures, consider their record keeping and keep abreast of developments in employment law.    

What is age discrimination?

Under the Equality Act 2010 it is unlawful to discriminate against someone on specified grounds. The specified grounds are referred to in the legislation as “protected characteristics” and one of the protected characteristics is age. 

Age discrimination can take place either as a result of an individual’s age or because an individual belongs to an “age group”, such as “the over 50s”.

There are also other types of age discrimination, such as discriminating against someone by association (for example refusal to allow the whole family to carry out an activity as one member is over 50) or discrimination by perception (refusal to allow a 30 year old to enter a club as she is perceived to look in her 50s and therefore not their type of customer).

Age discrimination and the workplace 

Age discrimination in the workplace is unlawful unless it can be justified. The legislation is designed to protect:

employees; and 

• Job candidates;  

• Trainees;  

• The self-employed;  

• Company directors and company office holders;  

• Partners in a firm.

Age discrimination law is designed to prevent someone from being discriminated against, either directly or indirectly, on the grounds of age in relation to:

• Recruitment;  

Employment terms;  

• Salary;

• Promotions and training opportunities;  

redundancy selection and dismissal.

Is age discrimination ever justified in the workplace?

The law says that age discrimination can sometimes be necessary or justifiable. The best London employment law solicitors say that an employer can only discriminate on the basis of age if the employer can show that the age discrimination was a proportionate means of achieving a legitimate aim.

It is sensible for employers to take legal advice from top London employment law solicitors on whether their proposed age discrimination is thought to be justified in order to avoid employment law and age discrimination claims. 

For example, the best London employment law solicitors may say that it is not justifiable to exclude candidates over 50 years of age from applying for a job as a hairdresser but the same exclusion of candidates over 50 might be entirely justifiable if a film director or production company is looking to employ an actress to play a character aged 19 in a film.

Age discrimination and retirement

An employee can ask to work beyond their normal retirement age. An employer can only retire the employee if there is an objective justification to require retirement. The fact that an employee has reached a certain age is not grounds in itself to force the employee to retire.

Age discrimination and unfair dismissal 

If an employee believes that they have been dismissed on the basis of their age, and therefore age discrimination has taken place, they can lodge a claim for unfair dismissal and age discrimination at the employment tribunal.

If an employee is successful in their claim they can receive monies for financial loss as well as an award for injury to feelings. The court has provided guidelines for the amount of damages that should be awarded for injury to feelings. Top London employment law solicitors can advise on the potential amount of the award based on the severity and seriousness of the case. In exceptional cases the award for injury to feelings can exceed the court’s guidelines.

The case of Mrs Jolly 

At age 88 Mrs Jolly is reported to have told the employment tribunal that it was her plan to work for as long as she could, and at least until she was 90. Her National Health Service trust employer dismissed her on the basis of their finding that she had not used their computer system properly by failing to add patient details to a database of patients awaiting surgery and failed to understand her role.

Mrs Jolly blames the database error on lack of adequate training. However, the media reports of the employment tribunal case do not say if it is alleged on Mrs Jolly’s behalf that she received less training than other colleagues and that age discrimination took place as she was not given the same training opportunities as a result of her age.

As the employment tribunal has reserved their decision top London employment law solicitors do not know if Mrs Jolly will win her claim or not. Whatever, the decision of the employment tribunal the media reports make uncomfortable reading and highlight the adverse publicity that an employment tribunal claim can generate, whether it succeeds or fails.

What preliminary lessons can be learnt by top employment law solicitors and employers from Mrs Jolly’s decision to bring an employment tribunal claim on the grounds of age discrimination at the age of 88? 

The employment law team at OTS Solicitors would suggest that the preliminary lessons are:

• There is no age barrier to bringing a claim of age discrimination to the employment tribunal - if there was then that would in itself amount to age discrimination; and 

• It is vital that procedures are followed to avoid potential employment tribunal claims. In Mrs Jolly’s case, her employer rightly conceded that she had been unfairly dismissed as she was not given the opportunity to appeal against her dismissal. Had the correct internal procedure been followed, whatever the outcome of the appeal, the employer might not have found themselves at an employment tribunal; and 

• The importance of report writing; in Mrs Jolly’s case it is said that she is rather upset by a quote by a work colleague contained in an internal report that said “it was always a concern that you could walk in and find Eileen dead on the floor”.  The quote does not refer to Mrs Jolly’s age but Mrs Jolly might perceive the comment to be age related; and 

• The importance of record keeping; Mrs Jolly says that she was not offered adequate database training. Were records kept of training sessions and attendees? and 

• The importance of robust appraisal systems; the media reports do not say if Mrs Jolly underwent formal appraisals by her line manager or members of the human resources team during the period when the entries were not made on the database but regular appraisals can help identify training needs; and 

• The adverse publicity that can be generated from the reporting alone of an employment tribunal claim, whatever the outcome for the employer. The publicity can affect staff morale as well as public perceptions of the employer.

OTS Solicitors and age discrimination claims

OTS Solicitors specialise in employment law, human resources support and training and the representation of employers and employees at Employment tribunals. 

For employers, OTS Solicitors provide bespoke training services to minimise the chance of an employee grievance or employment tribunal claim. OTS Solicitors believe that practical, pragmatic advice is the most effective way to avoid employers spending time and money in resolving employment law claims.

For employees, OTS Solicitors provide sensitive, clear employment law advice so that employees are aware of their legal remedies and employment law claims. With substantial experience in employment tribunal cases OTS Solicitors provide strong   representation.

For more information or for advice on employment law relating to age discrimination, unfair dismissal and employment tribunal representation or on any other aspect of employment law please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London employment solicitors.

 

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