An Employment Tribunal has found that the dismissal of an 88 year-old medical secretary was unfair and 'tainted by discrimination'.

The facts

The Claimant had been employed as a hospital secretary with an NHS trust for 25 years. She suffers from a heart condition and arthritis.

In September 2016 the Claimant was informed that she was being investigated by the Trust with regard to concerns it had with her capabilities. She was told that she was being placed on special leave and was escorted out of the building into a taxi.

An investigation into the capability concerns was carried out by a manager, who heard a number of comments from the Claimant's colleagues, including that she was too old to walk the length of the building; that she was old and frail because of her arthritis; and that there were concerns about her working overtime because of her age.

The Claimant was subsequently invited to a capability review meeting with a different manager. The Claimant asked that the meeting be postponed as she had a pre-booked holiday and medical appointment, but the Trust refused to reschedule the meeting.

The Claimant had raised a grievance, which among other things complained of the fact that she had been given inadequate training. She was informed that the issues in her grievance could be raised as part of the capability review meeting.

The meeting went ahead in the Claimant's absence, following on from which the Claimant was informed that her employment was being terminated on the grounds of her capability.

The Claimant attempted to appeal this decision, however was wrongly informed that the appeal had been submitted out of time. The Claimant wrote to the Trust again pointing out the error but received no reply.

The claim

The Claimant raised complaints of unfair dismissal, discrimination on the grounds of age, disability discrimination and breach of contract.

The decision

The Tribunal found in favour of the Claimant on the basis of all of her claims, noting that:

  • A number of the comments made about the Claimant by her colleagues were not specifically put to the Claimant, nor was she offered an opportunity to comment on them. The manager took these concerns into account when coming to his conclusions in the investigation report. This amounted to less favourable treatment and discrimination on the grounds of age.
  • The Trust had failed to deal with the Claimant's grievance at all, amounting to discrimination on the grounds of her age.
  • The Claimant was not offered training to address the capability issue and this was found to be because of her age. At the beginning of her capability review the Claimant was referred to as being stuck in "old secretarial ways". The Trust failed to show that the Claimant's age was not part of the decision to dismiss.
  • On the facts it could be concluded that the reason for the failure to allow the appeal and to respond to the Claimant's correspondence was because of her age.
  • The Claimant was also treated unfavourably because of her disability in relation to the manner of the investigation process, the capability hearing, the decision to dismiss, and in failing to consider the correspondence about the appeal.
  • The Claimant's dismissal was tainted by discrimination and was unfair. Aside from this, the Tribunal would have found the dismissal to be unfair because of the Trust's failure to appropriately follow its own capability procedure.

A remedy hearing is due to take place in October 2019.

Comment

A number of lessons can be learned from this case.

Firstly, it was noted that the manager failed to investigate the comments made by the Claimant's colleagues and allowed them to influence the investigation, constituting acts of age and disability discrimination. Care should be taken by those carrying out investigations to ensure that potentially discriminatory comments are looked into and are not simply taken at face value.

Secondly, the Respondent was criticised for its failure to follow its own capability procedure, and the unfair manner in which it had carried out its investigation - highlighting the importance of following a fair process.

For employers seeking further reference in this area, new guidance published by ACAS provides advice, in particular on recruitment, training, performance management and redundancy. This is available here.

Workbox users will also find guidance on this topic at the pages on Age Discrimination.

If you would like to discuss anything raised in this blog, please get in touch with your usual Brodies' contact.