Mrs E Jolly v Royal Berkshire NHS Foundation Trust — 2019

The tribunal found that Mrs Jolly had been continuously employed by the Royal Berkshire NHS Foundation Trust, or its predecessor entities, from 1991. It rejected the respondent's reliance on the 2012 statement of main terms as determinative of continuity, and accepted the claimant's evidence and documents showing earlier service. The tribunal also found that she was a disabled person within section 6 Equality Act 2010 because of her heart condition and arthritis.

The case arose after the claimant was removed from work on 8 September 2016 and placed on special leave while concerns were raised about 52-week breaches in the waiting list process. The tribunal found that Mr Eastwell's investigation was conducted unreasonably: he gave short notice of meetings, refused postponement despite a medical appointment and pre-booked holiday, and took into account comments from colleagues about the claimant's age, frailty and health. It held that this treatment was discriminatory because of age and disability, and also amounted to harassment-related conduct when the comments were communicated to the claimant.

The claimant's grievance about the process and about age discrimination was not properly dealt with. At the capability review, Mr O'Donnell concluded that her employment should be terminated on the basis of a catastrophic failure in performance, said retraining would not help, and dismissed her on 16 January 2017. The tribunal found age discrimination in the decision to dismiss, including a difference in treatment in relation to training, and also found disability discrimination under section 15 EqA because the unfavourable treatment arose in consequence of disability. It held that the respondent had not shown that age was no part of the reason for the treatment.

The tribunal also found that the appeal process was mishandled: the claimant's appeal was wrongly treated as out of time, and her subsequent letter pointing out the error was ignored. It concluded that the dismissal was unfair in any event because the respondent did not follow its own capability procedure or act reasonably under section 98(4) ERA 1996. The tribunal rejected Polkey reduction and contributory fault. It further held that the claimant was entitled to 12 weeks' notice and that the statement of particulars did not comply with section 1 ERA 1996. Remedy was left for a later hearing listed for 14 October 2019.