An employee has won her employment tribunal claim for age discrimination, victimisation and discrimination arising from disability. The employment tribunal found that the employee had been mocked by her younger colleagues due to her age, subjected to detrimental treatment because she raised a complaint about age discrimination and was dismissed because she took two days off work due to osteoarthritis. The employer had tried to persuade the employment tribunal that the short serving employee was dismissed due to poor performance but was unsuccessful in doing so.
The case of Walsh v Rose Medical Ltd is a reminder for employers to be alert to discrimination issues and to bear in mind that there are a number of claims employees can bring from day one of their employment.
The Facts of the Case
The employee worked as a counter assistant in a pharmacy. She was 63 years old and had osteoarthritis. She was mocked from the outset at work by younger colleagues for not being able to remember things and not being able to hear them, this continued even after she got a hearing aid. This treatment was related to her age.
The employee met with one of the directors and reported what had been happening to her for over a year, informing him about the mocking and that she was unhappy with the attitude of some of the younger members of staff towards her. The director told her to ignore them, come in, just smile and get on with the job. The employee said she had done that but it had not gone away and she shouldn’t have to let it go – she was 63 not 21. The employee told him that she had reported the matter to her line manager but he had done nothing about it and she did not feel supported. She said that it was so bad now that she wanted to move pharmacies or maybe be let go. The director encouraged her that things would get better. The meeting ended with the employee expecting that something would happen, staff would be spoken to and things would improve. However, the only action taken by the director was to inform her line manager about her complaint.
After this, things became increasingly difficult for the employee. Following the complaint her line manager subjected her to scrutiny that was not applied to younger workers and he became less accessible in response to any queries she had, there was also a conversation in which he asked about her age and retirement.
The employee was also asked by the line manager to dispose of medicines that had been returned to the pharmacy, a task that wasn’t part of her normal duties. This proved difficult for her due to her osteoarthritis as it involved sitting for a while and bending. She didn’t raise concerns at the outset as she didn’t realise how long it would take and the climate at work made it difficult for her to ask for help. After the task, she was in pain and had a dizzy spell leading to a fall and was subsequently sent home.
The employee was then off sick for two days, informing her line manager that this was because she hurt her back disposing of the medicines. The employer was aware from the outset of her employment that the employee had osteoarthritis. When the employee was back at work the director went into the pharmacy and asked the employee to attend a return to work meeting, even though these were not usually held. The employee was dismissed in that meeting, this was later confirmed by letter which stated that she was unsuitable for the role. The employee had less than two years service.
The employee complained to the employment tribunal that she had been subjected to age discrimination, discrimination arising from disability and that she had been victimised for performing the protected act of complaining about age discrimination. The employee succeeded in her claims.
In particular, the employment tribunal found that:
- The employee had been subject to discrimination arising from disability. The tribunal found that the employee was dismissed because of her two day absence which arose out of her disability – a bad back due to a flare up of her osteoarthritis caused by the task of disposing of the medication.
It was found the decision to dismiss was made by the director in a telephone call with the employee’s line manager during her sickness absence. The director had tried to argue that he wasn’t aware that the employee was off sick at that time or of the circumstances but the tribunal found that this was not the case. Furthermore, at the meeting at which the employee was dismissed she had told the director of the incident, the flare up in her osteoarthritis and her absence before he dismissed her. He had suggested at that meeting that the reason that could be given to the staff to explain the employee’s departure was her bad back. The employer tried to argue that the reason for the dismissal was poor performance and not the sickness absence, but this failed. There was no evidence of this and the tribunal felt that if there had been serious performance concerns from early on as was alleged, that the employer would have taken action or terminated her employment sooner.
- The employee had been victimised. Her line manager had subjected her to detrimental treatment because she had complained to the director about how she was being treated because of her age. The tribunal found that her line manager had shown showed hostility towards the employee in speaking to her and not others about attending to customers immediately, he became less helpful and supportive of her and showed hostility towards her in the level of scrutiny he applied to her work.
The employee was awarded £15, 649.13 by the tribunal.
Kingfisher’s Advice
One of the comments made by the judge in this case was that the director seemed to believe that as the employee had less than two years’ service he had a lower level of care and responsibility towards her than someone with two years’ service, as he regarded her as not being ‘fully contracted’. Whilst an employee who has less than two years service may not be able to bring an ordinary unfair dismissal claim, as this case shows, there are employment protections such as discrimination and victimisation that apply from day one of employment. With this in mind it’s always important for employers to ensure that they act appropriately in the circumstances.
If a complaint such as that of discrimination or harassment is raised it’s important to ensure that it is promptly and appropriately addressed, this should usually be done using the company grievance procedure. One of the criticisms the tribunal made in this case was that the employer didn’t investigate the matter or take any other appropriate steps to address it.
If an employee in your organisation raises an issue or you are considering taking action against an employee, such as disciplining or dismissing them, please call Kingfisher Professional Services Ltd for advice on the facts of your case, irrespective of the employee’s length of service. Kingfisher Professional Services Ltd are here to help.