Two care assistants could not show any unfavourable treatment related to their age after they resigned following an investigation into their poor treatment of residents.
Facts
Mrs Embley and Mrs Hezsely were employed as care assistants by Julie Rhodes, the owner of a care agency which provides services to vulnerable adults.
Both were suspended on 17 November 2016 pending an investigation into allegations of misconduct, including that they had put clients to bed early and left them in bed late to allow the staff to participate in coffee mornings and ‘come dine with me’ events. It was also alleged that they had bullied other staff and failed to take clients out when they were supposed to.
Mrs Embley and Mrs Hezsely both met with Mr Rhodes (the brother of Julia Rhodes, and a manager of the business). The allegations were put to them in general terms and they were not given any details or the identity of the people that had raised concerns. Shortly after this, both were signed off sick from work by their GPs. It was agreed on 22 December 2016 that they would both return to work, but they would work on the staff bank and not in Unit 1, which was the care team in which they were originally stationed. They submitted written grievances in January 2017, received responses in February, but then resigned shortly after. Both letters did not contain any mention of age discrimination. Mrs Embley was 63 when she resigned and Mrs Hezsely was 65. They both resigned within 2 days of each other and when they brought claims in the Employment Tribunal, they both alleged that they were constructively dismissed and unlawfully discriminated against on the basis of age.
Decision
Mrs Embley and Mrs Hezsely contended that their respective resignations were a result of a culmination of acts of direct age discrimination; namely that the allegations raised against them for breaches of contract were designed to get them both ‘out of the building’ because of their age. They contended that age was engaged as they were two of the oldest carers at that time and they were regarded as people who would not be ‘mucked about’ by Agency Assistance, which they said was a perception associated with age. Although the Employment Tribunal found that they were constructively dismissed, it was not satisfied that they had established any facts that showed they were treated less favourably because of age. Both Mrs Embley and Mrs Hezsley failed to contend that any named comparators were subject to similar allegations of a lack of adequate patient care, and one comparator, Miss Lowson, who was born in 1991, was treated in a similar manner with regard to suspension and investigation.
As they had failed to establish a factual basis for the claim that they were treated less favourably on the basis of age, the burden of proof did not shift to the respondent. The Employment Tribunal dismissed both claims of age discrimination.
The full judgment is available here.
Mrs J Embley and Mrs J A Hezsely v Julie Rhodes trading as Agency Assistance 1400486/2017 & 140053/2017