In a recent case, the Claimant suffered from a heart condition and arthritis which was classed as a disability for the purposes of employment law legislation. The Claimant commenced work with her NHS employer as a medical secretary when she was 61 years old. As part of this role, the Claimant kept a list of people who were waiting for non-urgent surgery. This list was separate from the hospital’s waiting list and existed mainly to alert her employer to when patients were getting close to breaching the 52-week waiting time for non-urgent surgery from their initial referral.
When the system changed to an electronic patient record system, the Claimant was informed her role had changed from medical secretary to patient pathway coordinator. However, it was never made clear what this new role meant. The Claimant was required to attend a short training session on the new electronic system. This training had to be rescheduled because the trainer was unable to establish how employees should use part of the system. The rescheduled session ultimately did not take place.
Following being told she was being investigated for a disciplinary matter and escorted off the work premises, the Claimant received a letter from her employer which said it was “concerned” about her “capabilities” within her role “due to a third serious incident in two years regarding 52-week breaches of the referral to treatment standard in the waiting list”. However, the Claimant said she had no idea what the first two serious incidents alluded to in the letter were, as no serious incidents had been raised with her previously. The details of the third serious incident were not made clear to her other than the fact that it related to a “52-week breach”.
The Claimant raised a grievance complaining of age discrimination, which the employer failed to deal with. Following the Claimant’s dismissal for gross misconduct, due an alleged failure to ensure that patients were scheduled for surgery within a 52-week period, the Claimant brought a claim for unfair dismissal and age and disability discrimination.
As part of the disciplinary investigation, the employer had collected and used feedback on the Claimant obtained from her colleagues, including about her age and mobility, which the employment tribunal found to be “inappropriate” and “discriminatory” as they were based on perceptions of age and mobility, rather than having any factual basis. Whilst the employer insisted that these discriminatory comments were not taken into account, they were provided to the Claimant as part of the investigation report without qualification. It was the view of the tribunal that the employer took into account the concerns expressed by the Claimant’s colleagues in coming to its conclusions. No disciplinary investigation meeting took place with the Claimant and the report into the disciplinary investigation was concluded without any evidence taken from the Claimant. This was because when the Claimant stated that she could not attend the disciplinary investigation because she had a medical appointment and her representative was not available. The employer, however, refused a postponement and insisted that the investigation meeting would go ahead without her. The employment tribunal found that the disciplinary investigation was inadequate and that there were serious procedural failings in the disciplinary process.
The tribunal found that the Claimant had a fundamental misunderstanding of her role and the tasks that she should have been doing, yet the Claimant was not offered training to address this. The employer had stated that the Claimant was stuck in “old secretarial ways” and the tribunal found that the employer believed that because of her age, the Claimant was not going to be helped by training. The tribunal further concluded that instead of the Respondent addressing the requirements of her role directly with her and either training her and then requiring her to do the role as directed, the Claimant was dismissed. The dismissal was discriminatory on the grounds of age and disability.
ACAS has published new guidance on age discrimination in the workplace. This includes guidance on the risk of age stereotyping and when discrimination on the grounds of age may be lawful (such as where the employer has a legitimate business aim and the (otherwise discriminatory) measure is a proportionate means of achieving the legitimate business aim). The ACAS guidance reminds employers that employees should be judged on their job performance, rather than on general assumptions about their capabilities. Where an employee’s ill-health (whether or not this is age-related) is impacting their ability to carry out their job (or the employer reasonably suspects that it may be), the employer should follow their capability procedure in investigating the issue. A reasonable investigation is required to establish the facts (including obtaining medical advice) in order to put in place measures or reasonable adjustments to address any capability issue. This is likely to be a fairer process than addressing the concerns under a disciplinary procedure, which in most cases is likely to be inappropriate.