EMPLOYMENT LAW – EQUALITY/NO DEFAULT RETIREMENT – Jolly v The Royal Berkshire NHS Trust [2019 ] ET.

Since 2011 there has been no default retirement age in the UK so employers cannot compulsorily retire workers when they reach the age of 65. The benefit is the retention of experienced staff but there are challenges of capacity and notably claims under the Equality Act 2010 for age and disability discrimination. See the recent case of Jolly.

J worked as a secretary for the Trust from aged 61. In 2015 her role changed to managing computerised waiting lists. Training was arranged but had to be rescheduled. In 2016 she failed to upload records onto the system, which led to patients waiting a year longer for non-urgent surgery. The Trust found that she had a “fundamental misunderstanding of her role.“ During the investigation J said that Trust managers had made upsetting comments about her age, e.g., she was “stuck” in her old ways. She also had a heart condition and arthritis. She was dismissed in January 2017 aged 87, having 26 years’ service. Claims for unfair dismissal, age/disability discrimination and breach of contract all succeeded. The Trust admitted unfair dismissal for failing to allow her to appeal but said her lack of capability was a justifiable reason to terminate employment.

Held: J did have a “fundamental misunderstanding of her role,“ but had received insufficient training as her employer believed that, because of her age, it would not help. She had been treated differently and less favourably because of her age. At a subsequent remedy hearing the ET awarded her £200,000 (net £129,375):

Basic Award: £12,956.54;
Compensatory award e.g., loss of earnings: £71.472.64
Injury to feelings: £20,000.00
Loss of statutory rights: £350.00
No written reasons for dismissal: £1727.52
Failing to comply with Acas Code of Practice:£22,868.16

Comment: The Trust assumed that this lady, by trial aged 88, could not be trained. All staff must be treated equally. If a worker has a disability, reasonable adjustment can be offered. Finally, the Trust could have mitigated the extent of the claim after dismissal. Failing to give written reasons and failing to allow J to appeal and to comply with the ACAS Code of Practice.were clearly avoidable.
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