In a recent case, the Claimant suffered from a heart condition and arthritis which was classed as a disability for the purposes of employment law legislation. Due to a process change, the Claimant was informed her role had changed, however, it was never made clear what this new role meant. The Claimant was required to attend a short training session on a new electronic system. However, this training session ultimately did not take place. The Claimant received a letter from her employer which said it was “concerned” about her “capabilities” within her role and were investigating this as part of a disciplinary. The Claimant raised a grievance complaining of age discrimination, which the employer failed to deal with. Following the Claimant’s dismissal for gross misconduct, the Claimant brought a claim for unfair dismissal and age and disability discrimination. As part of the disciplinary investigation, the employer had collected and used feedback on the Claimant obtained from her colleagues, including about her age and mobility, which the employment tribunal found to be “inappropriate” and “discriminatory” as they were based on perceptions of age and mobility, rather than having any factual basis. No disciplinary investigation meeting took place with the Claimant and the report into the disciplinary investigation was concluded without any evidence taken from the Claimant. This was because when the Claimant stated that she could not attend the disciplinary investigation because she had a medical appointment and her representative was not available. The employer, however, refused a postponement and insisted that the investigation meeting would go ahead without her. The employment tribunal found that the disciplinary investigation was inadequate and that there were serious procedural failings in the disciplinary process. The tribunal found that the Claimant had a fundamental misunderstanding of her role and the tasks that she should have been doing, yet the Claimant was not offered training to address this. The employer had stated that the Claimant was stuck in “old secretarial ways” and the tribunal found that the employer believed that because of her age, the Claimant was not going to be helped by training. The tribunal further concluded that instead of the Respondent addressing the requirements of her role directly with her and either training her and then requiring her to do the role as directed, the Claimant was dismissed. The dismissal was discriminatory on the grounds of age and disability. ACAS has published new guidance on age discrimination in the workplace. This includes guidance on the risk of age stereotyping and when discrimination on the grounds of age may be lawful. Where an employee’s ill-health is impacting their ability to carry out their job the employer should investigate the issue. A reasonable investigation is required to establish the facts (including obtaining medical advice) in order to put in place measures or reasonable adjustments to address any capability issue. This is likely to be a fairer process than addressing the concerns under a disciplinary procedure, which in most cases is likely to be inappropriate. | 