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88 year old woman wins age discrimination case

Deborah Francis

18th February 2019

The recent case of Ellen Jolly, whose career in the NHS was brought to an abrupt end in 2017, raises many interesting issues around the subject of age discrimination and makes important reading for employers and employees alike.

The case

Ellen Jolly had worked for the NHS for 25 years. At the Employment Tribunal in Reading, she said that she had not had a day off sick for ten years, despite having suffered a cardiac arrest in 2004.

However, her plans to retire at 90 were curtailed when she was dismissed after colleagues reported their concern about her frailty and age. Reports say that she was marched from the building. Instead of taking steps to investigate the concerns, the NHS proceeded to remove her from her role, claiming she had failed to upload details of women awaiting breast reconstruction surgery. This would have placed the trust at risk of a fine.  

The verdict

Judge Andrea Gumbiti-Zimuto ruled that Mrs Jolly and her managers had a different understanding of what her role entailed. The judge found that Mrs Jolly felt she was performing her role competently and suspected that she was being held as a scapegoat for the errors in failing to load the data in question.  She had not been offered appropriate training, and the training that had been provided was inadequate, incomplete and ad-hoc.

The tribunal felt that Mrs Jolly’s dismissal was an action of age discrimination. In winning her case, Ellen Jolly is the oldest person to succeed with an age discrimination claim.

What are the take-outs for you? 

  • There is no legal retirement age and many employees will decide to continue working. Most will be perfectly capable of doing so, but some may not.
  • It’s important for employers to take advice if you have an elderly employee who is under performing and you’re worried about how to address the issue.
  • In this case, the NHS would have been better advised to treat their employee with the respect she deserved particularly in view of her long loyal service to them.  If they had serious concerns then they could have suspended her on full pay pending an investigation. If they then found evidence that she posed a serious risk to patients, then they may then have had grounds to dismiss her. They should have followed the procedures that apply in these circumstances instead of subjecting her discriminatory treatment by removing from her role and ending her career in this undignified way.     

We’re here to help

If you have any questions about the topics raised above, whether you are an employee or employer, please call our employment specialist Deborah Francis on 01273 384008 or email her on d.francis@griffithsmith.co.uk


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