NHS secretary becomes oldest person to win age discrimination case

Tribunal hears of suspicion 88-year-old was used as a ‘scapegoat’ after hospital collected ‘discriminatory’ feedback from colleagues

An 88-year-old hospital secretary has become the oldest person in the UK to win an age discrimination case after she was sacked when colleagues complained about her age and “frailty”. 

Eileen Jolly was “humiliated” and “degraded” after the Royal Berkshire NHS Foundation Trust dismissed her for allegedly failing to upload details of cancer patients into a new electronic database, a Reading tribunal heard. 

Judge Gumbiti-Zimuto added there was a “suspicion” Jolly was a “scapegoat” and cited evidence she had received inadequate training which could have led to the mistake. 

Jolly joined the East Berkshire College of Nursing and Midwifery in 1991 when she was 61 years old, and remained in continuous employment by the various changing entities that became the Royal Berkshire NHS Foundation Trust until her dismissal in 2017. She had not taken a sick day in 10 years, despite having suffered a heart attack, according to media reports.

In 2005, she began work as a medical secretary to Brendan Smith, a surgeon who undertook breast cancer surgery and non-urgent surgery.

As part of this role, Jolly 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 Smith when patients were getting close to breaching the 52-week waiting time from their initial referral.

In 2015, the system changed to an electronic patient record (EPR) system. Jolly was informed her role had changed from medical secretary to patient pathway coordinator – although it was never made clear what this new role meant – and she was required to attend waiting list training. The session was “quite short” and had to be rescheduled because the trainer could not tell employees how to use part of the system. The rescheduled session ultimately did not take place. 

The tribunal heard that on returning from holiday on 8 September 2016, Jolly was told to meet with the director of operations, where she was informed she was being investigated. She was placed on leave and told collect her things and leave the premises. Jolly described the incident as “awful” and recalled a colleague saying she “won’t be coming back”. 

Jolly then received a letter dated 29 September, which said the trust 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, Jolly said she had no idea what the first two serious incidents alluded to in the letter were, and the details of the third incident were not made clear to her other than it “related to a 52-week breach”. 

The tribunal heard Michael Eastwell, the deputy patient pathway manager, attempted to interview Jolly multiple times, however there was no initial interview and a report was submitted in her absence. Eastwell also collected and used feedback on Jolly from her colleagues, including about her age and mobility, which the judge said were “inappropriate” and “discriminatory”. 

When Jolly eventually did meet with management in January 2017, she was dismissed for failing to carry out her duties in managing the waiting list. Jolly unsuccessfully appealed the decision.

The tribunal ruled Jolly had been unfairly dismissed, and her discrimination claims on the grounds of age, disability discrimination and breach of contract also succeeded.

Paul Holcroft, associate director of Croner, highlighted the potential risks involved when an employer makes assumptions based on an employee’s age. “Risking hefty awards of compensation isn’t the only downside to allowing age discrimination to take place within a business,” Holcroft said.

“Judging people on their age doesn’t allow you to appreciate someone’s true potential, and your loss could be your competitor’s gain if you release someone because you think they are too young or too old to cope.”

Shah Qureshi, head of employment law and partner at Irwin Mitchell, added the issue in this case was that complaints were used as a “catalyst” towards Jolly’s dismissal. He said employers should “adopt a holistic approach” and conduct proper investigations when an issue regarding an employee’s “perceived lack of competency” is raised. 

Don Fairley, the director of workforce at Royal Berkshire NHS Foundation Trust, said the trust takes staff welfare “extremely seriously along with our responsibility to provide safe and effective care to patients”. She added the trust acknowledged the judgment and “will be considering our next steps”. 

A further hearing to consider remedy will take place in October.