An older NHS worker did not suffer indirect age discrimination when she was moved department following concerns about her sparse note taking.
Facts
Mrs Lovell worked as a midwife for the NHS from 1990 until she retired in December 2016. Following her retirement as an employee, she continued to work as a flexible contract worker for NHS Professionals Ltd (NPL).
In the maternity unit, she worked on an electronic patient record system which had been in place since 2014. If information is recorded incorrectly, then it can hinder treatment planning, which is a safety risk for patients. The staff in the maternity unit were from a range of age groups and included many workers who were in the same age group as Mrs Lovell.
Around August 2017, Mrs Lovell had meetings with her manager, who told her that her note taking on the electronic system was too brief and that she would be monitored going forwards. Mrs Lovell was working for two or three hours after her shift so that she could complete patient notes, and she was claiming overtime payments for that work. Mrs Lovell was then moved to work in departments that were less time pressured.
Mrs Lovell claimed that she suffered indirect age discrimination. The relevant provision, criterion or practice that was applied was the requirement to operate the computer system. She claimed that it put people in her age group at a disadvantage because they are less proficient with computers. Other employees in the same age category as Mrs Lovell said that they had difficulties with the system, with one staff member saying that ‘younger nurses are twice as fast’ at typing as the older members of staff. The disadvantage that Mrs Lovell specifically claimed was that it took her longer to input information into the system as she could not type quickly enough, which was a disadvantage based on her speed of typing as opposed to the design of the system.
Decision
The Employment Tribunal (ET) dismissed Mrs Lovell’s claim.
The ET found that at no stage was any action taken against Mrs Lovell for her speed of typing. The concerns were about the brevity of the information on the system and the fact that she was staying late to do the note taking. The ET held that the age discrimination claim must fail because the disadvantage to which she was subjected was nothing to do with the computer use at all, just her ‘sparse note taking’.
The ET held that even if it gave the claimant the benefit of the doubt and the use of the computer system did put people of her age at a disadvantage, it would hold that having the computer system was a proportionate means of achieving a legitimate aim of providing good patient care.
The ET had a lot of sympathy for Mrs Lovell, and said that the training given on the system was inadequate. There was a lack of funding available to train staff, but it was still satisfied that NPL discharged the burden to show that the reason why Mrs Lovell was treated as she was was because of concerns about patient safety, not because of Mrs Lovell’s age.
Although the ET held that the claim of age discrimination failed, it suggested that the shortage of midwives in the NHS should be a reason to ensure Mrs Lovell continued to deploy her skills.
The full judgment is available here.
Mrs K Lovell v NHS Professionals Ltd and Doncaster & Bassetlaw NHS Teaching Hospital Foundation Trust 3306869/2018