Ireland: The Age Old Question – When Is There Age Discrimination?

Last Updated: 20 March 2019
Article by Séamus Given and Helen Webb
Most Popular Article in Ireland, March 2019

Employers and courts alike continue to be vexed by issues relating to age as a ground of discrimination. This is not surprising given culturally there is still a level of acceptance regarding "banter" or comments about someone's age.

Most of us (at least those over a certain age) have received a birthday card making a joke about our increasing age and subsequent capability or looks! The recent English case, Jolly v Royal Berkshire Hospital, is an excellent example of an employer failing to address age discrimination and illustrates how not to conduct a capability procedure; it warrants taking a closer look.

The facts – what happened?

Mrs Jolly worked from 1991 until 2015 as a medical secretary, and subsequently between 2015 and September 2016 as a patient pathway coordinator, until she was suspended by her employer, escorted from the premises, investigated under a capability procedure and ultimately dismissed. In 2016, Mrs Jolly was 86, and suffered from a heart condition and arthritis.

The follow up letter from the Director of Operations stated Mrs Jolly was being investigated over a concern about her capabilities 'due to a third serious incident in two years' regarding administration of the hospital waiting list. Here, the Employment Tribunal points out that Mrs Jolly had no idea what the first two incidents referred to were as no serious incidents had been raised with her previously and indeed "none of the Respondent's witnesses were able to identify the first two serious incidents..."

The manager conducting the investigation contacted Mrs Jolly to arrange an interview four days later. Mrs Jolly sought to postpone the meeting as she could not get union representation. When a second date of another four days later was offered, Mrs Jolly sought to postpone again due to a pre-arranged medical appointment, the fact that she still could not obtain union representation, and because she was about to go on holiday. The manager's view was that the capability meeting should go ahead without her and a report be prepared in her absence. He considered that Mrs Jolly had plenty of time to rearrange her medical appointment, given she had been suspended. The manager subsequently decided he should obtain Mrs Jolly's input and sent her some questions which she received and responded to on holiday.

A part of the investigation, the manager spoke to a number of Mrs Jolly's colleagues. Her colleagues made a number of discriminatory comments including: she was too old to walk the length of the building; she was frail because of her age; she had difficulty with walking and arthritis; comments about her health; and concerns regarding her working overtime because of her age. The investigating manager himself referred to Mrs Jolly being 'stuck in old secretarial ways'. When questioned, the manager said he did not take these comments into account and just reported them. However, there was nothing in the investigation report to suggest they were not taken into account and Mrs Jolly was not given an opportunity to respond to them.

Mrs Jolly was invited to a second investigation meeting where it was said her actions in relation to the waiting list and competency in role would be considered. Mrs Jolly raised a grievance regarding: the way she had been treated; the fact that the consultant she worked for did not work in accordance with the process they raised and had no issue with her performance (which the consultant supported in his evidence); that she had been given inadequate training regarding the new process; and the way she was being treated was due to her age.

The Director of Operations stated that Mrs Jolly's grievance would be heard as part of the second capability review meeting. However, at the review meeting he did not ask Mrs Jolly about age discrimination or deal with her grievance, other than to ask her whether she had said everything she needed to say.

Mrs Jolly was dismissed and, when she appealed, she was initially incorrectly told her appeal was out of time. When this error was pointed out, there was still no consideration of, or response to, her appeal.

Unsurprisingly, Mrs Jolly raised claims for unfair dismissal, discrimination on the grounds of age, disability discrimination and breach of contract.

The decision – was the employee discriminated against?

In finding in favour of Mrs Jolly, the Employment Tribunal noted:

  • The capability policy attempts to secure the improvement of an employee's performance. The investigating manager did not approach the process in "the spirit of the capability procedure" but "more akin to a disciplinary process."
  • The investigating manager took into account the totality of the comments expressed by Mrs Jolly's colleagues relating to her age and health. By taking these comments into account in relation to Mrs Jolly's performance, the conclusions were tainted by her age and disability. This amounted to unreasonable treatment and constituted discrimination.
  • The Director of Operations did not deal with Mrs Jolly's grievance at all. The grievance raised the issue of age discrimination and the employer accepted that inappropriate comments had been made relating to Mrs Jolly's age and frailty. On that basis, there were sufficient facts to conclude that she was treated less favourably on the grounds of her age. The failure to consider her grievance constituted discrimination.
  • The Director of Operations did not allow Mrs Jolly time to improve after an appropriate warning. Mrs Jolly was not offered training as the Director of Operations did not think it "appropriate in the Claimant's case". The Tribunal found there was no justification for this conclusion and inferred that the difference in treatment was due to Mrs Jolly's age, and her subsequent dismissal was less favourable treatment due to age.
  • The failure to consider or respond to Mrs Jolly's appeal appeared from the facts to be because of her age and the employer did not provide a response to show it was not due to age.
  • The comments made by colleagues and communicated to Mrs Jolly during the investigation had the purpose and effect of violating her dignity in relation to her age and disability and created a hostile and intimidating environment for her.
  • The unfavourable treatment because of her age was by reason of symbiosis also because of her disability.
  • The dismissal was unfair due to discrimination, harassment relating to age and disability, and because the procedures followed, not least the employer did not follow its own capability procedure.

Points to consider – what should an employer do?

What should employers take from this case, other than a salient reminder on the purpose and conduct of a capability procedure? Employers should remember the following:

  • With the removal or postponement of compulsory retirement ages and an increasingly aging workforce, it is important that your workforce is appropriately trained in relation to age discrimination.
  • As with any other protected characteristic, managers should be aware of bias in relation to age and ensure it does not impact how employees are treated in the workplace e.g. by not offering training to certain employees. Particular care should be taken to rule out unconscious bias.
  • Derogatory comments because of age are not acceptable in the workplace and may amount to discrimination. They should be treated as seriously as derogatory comments based on any other protected characteristic.
  • Capability procedures should be conducted fairly and with a focus on the skills required for the role. If the issue of age is raised, this should be clearly and categorically removed from consideration, and handled appropriately.
  • If the organisation has a capability procedure, it should be followed! Any capability procedure should at a minimum include:

    (a) an initial informal warning or discussion regarding performance concerns;
    (b) a reasonable assessment or investigation into the employee's work, which is provided to the employee who is given an opportunity to comment on the findings before a formal procedure is commenced;
    (c) a capability meeting where the performance concerns and any relevant documents are discussed;
    (d) if performance is found to be lacking, a warning outlining the areas where performance is below standard, targets for improvement and any training or assistance which the employer will provide;
    (e) a review period to enable the employee to improve;
    (f) if necessary, a further capability meeting followed by a further warning and/or dismissal and/or review period; and
    (g) a right of appeal for the employee at each stage.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions