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Age is a Question of Mind Over Matter in Tribunal Case

View profile for Victoria Schofield
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In the light of a recent out of court settlement when an 86 year old sued the NHS for Age Discrimination employers need to be aware of their procedures and policies, especially as we have an ageing work force and people wanting to work into their 70s and beyond.

As employment solicitor, Victoria Schofield said:  “As this case shows, employers should be wary of stereotyping people because of their age, or for any other reason, and/or making assumptions about their abilities. 

“Given the recent government announcement that it intends to raise the State retirement age to 70, we are likely, in the future, to have increasing numbers of people who wish to continue to work as an affordable retirement may be further away and less achievable for them.”

Unfair Dismissal

The 86 year old NHS secretary was sacked from the Royal Berkshire Hospital, her managers said she had ‘old secretarial ways’ and could not use the computer system properly.

Employment judge Andrew Gumbiti-Zimuto said she had been discriminated against on the grounds of age.  He ruled that inappropriate and hurtful comments had been made about her age and health and that her dismissal was unfair because procedures had been incorrectly followed.

“Failures to provide re-training in respect of technological advancements might be regarded as either indirect or direct age discrimination depending on whether this is a policy or something from which the older person is deliberately excluded,” added Victoria.

“It is clear that, in this case, there were procedural failings in the process that led to her dismissal, and that there was some evidence that colleagues had made discriminatory remarks (this could be construed as workplace harassment for which the employer could be found liable) and therefore there may have been some aggravating features to the case,” she warned.

Age Discrimination

However, employers should be careful and should always take advice on any matters that could give rise to disparate treatment of employees of different ages, and the following are just a few examples of treatment which could give rise to a claim of age discrimination:

  • Making an employee redundant because he/she is older than the rest of his/her colleagues and the employer believes the stereotypical idea that older people are less motivated and/or efficient at their work
  • An employee missing out on promotion because he is older than the rest of his colleagues and the employer believes the stereotypical idea that older people are less motivated and/or efficient at their work/heading to retirement
  • An employee being made redundant because he is younger than his colleagues and it is therefore cheaper to make him redundant or the employer believes the stereotypical idea that younger people have less experience and are therefore of less value to the business
  • An employee missing out on promotion because he is younger than his colleagues or the employer believes the stereotypical idea that younger people have less experience and are therefore less suited to a more senior role
  • Being referred to in derogatory terms (e.g. “Old git”/ “Stupid kid”) in the workplace (this is known as harassment)
  • Failing to provide training because the employer thinks it is not worthwhile, as the employee is over a certain age and heading towards retirement age
  • Denying someone a job opportunity because the advert tends to target, in its wording, those of a certain age (eg “newly qualified” or “recent graduates”)

As Employment Solicitors we act for both employers and employees and this gives a clear precise and up to date knowledge of how businesses are run on a day to day basis.

For advice on any employment law issues or specific advice on discrimination contact our employment law solicitors Victoria Schofield or Susan Mayall.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers LLP or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.