A 71-year-old primary school employee has won her age discrimination and unfair dismissal claim after her headteacher told her: ‘We’re not all going to be here forever’.
An employment judge found that the comment was “inherently ageist” and was a clear reference to the claimant having passed retirement age and being unlikely, in the headteacher’s opinion, to work much longer.
Mrs Ware had been employed at Horsenden Primary School in the London Borough of Ealing since 2013 in three part-time roles: as an attendance/medical officer, a pool plant operator and a swimming school co-ordinator. When considered together, she was employed almost full-time.
In October 2022, she claimed there was a push, spearheaded by the headteacher Mrs Appelby, to remove her from her role because of her age and assumed proximity to retirement. The school’s governing body and Ealing council maintained that Ware was dismissed for “some other substantial reason”, namely a restructure, and denied any discriminatory conduct. They also argued that the aspects of the discrimination claim were out of time.
‘We’re not all going to be here forever’
The employment tribunal heard that in a meeting in November 2021, Appelby told Ware she was considering combining Ware’s attendance/medical role with that of the welfare officer, who was shortly to retire.
Ware initially understood Appelby to be suggesting she take on that role full-time before the headteacher indicated that Ware would relinquish being attendance/medical officer in order to focus on the swimming school.
Ware raised various concerns, including that the swimming role was, at best, 30 hours per month and she would face a significant drop in income. She also made clear she was willing to discuss a different contract for the swimming school.
Age discrimination
Age discrimination is commonplace at work
The tribunal found that, during this meeting, Appelby said to the claimant: “We’re not all going to be here forever”. It found Ware’s evidence credible, having referred to the comment in quotation marks shortly after the meeting in an email.
By comparison, Appelby’s evidence that the comment was not made, was not credible, according to the tribunal. She did not respond to the allegation made in Ware’s email.
The judgment said: “We do not accept [Appelby’s] explanation for this, namely that she considered the email to be for information only or that it did not require a response. Ms Appelby would clearly have appreciated the significance of such a comment and the risk of a discrimination allegation in light of it.
“In those circumstances, had she not made the comment as alleged, we would have expected her to respond to the email denying it. Ms Appelby did not respond to the email at all and did not deny having made the comment as alleged.”
Ware’s email also made it clear that she had no intention of retiring and raised her concerns about the merging of the attendance and welfare roles. She said that if the zero-hours role at the swimming school was posing a problem, she would be willing to discuss that further.
Swimming pool investigation
The following week, Appelby commenced an investigation into a number of closures of the swimming pool – relating to high-chlorine levels – following complaints from staff. To boost its income after the Covid lockdowns, the school was accepting more external bookings for the pool, and this was negatively affecting the water quality.
Other than a 10-minute discussion with the author the claimant was excluded from any meaningful input into the independent investigation report, despite Ware having responsibility for the quality of the pool water.
The tribunal accepted that Appelby had real concerns about the pool management and operation, and that she genuinely, but mistakenly, believed the claimant responsible for those failings. Appelby wrongly believed Ware was contracted to work 6.5 hours a week on the pool, but she actually worked 2.5 hours – half an hour per day.
In a meeting in January 2022, Appelby met Ware and informed her of a disciplinary investigation in relation to the pool closures. She handed her a letter inviting her to a disciplinary meeting about serious allegations that amounted to gross misconduct, and which could result in dismissal.
Suspension: threatening behaviour?
Ware returned to school the following day and asked school business manager Mrs Brady for a list of dates the pool had been closed.
Appelby claimed that Brady approached her shortly after, visibly upset and shaken saying she felt threatened by Ware and that she was trying to influence the outcome of the investigation.
Appelby said she was concerned that other staff would also be threatened and, after consulting with Ms Stock, an HR practitioner with Ealing council, she decided to suspend Ware pending an investigation.
The tribunal did not accept, however, that Brady felt threatened as there was nothing in a later email to suggest so. In fact, Brady’s email was broadly reflective of Ware’s account, that she was “trying to gather evidence to defend herself against serious, potentially employment-ending allegations”.
The suspension letter made no reference to threatening or abusive behaviour but said Ware was suspended because she had made several attempts to discuss the matter with other staff.
Further, when Ware left the school after her suspension, Brady sent a colleague out to check she was okay before driving. “If Ms Brady had been visibly upset, shaken and threatened by the claimant, as is now alleged, that would be a surprising thing for her to have done,” said the judgment.
“The suspension was wholly unjustified,” said the judgment. “The claimant had not been told that the allegations were to be treated confidentially.”
After an investigation meeting, at which notes were taken by Appelby but not shared with Ware, Appelby concluded that there was no case to answer and further disciplinary action was not justified, primarily because of the misunderstanding about Ware’s hours operating the pool. The independent report about the pool raised concerns about matters beyond the Ware’s responsibility.
Ware was informed of the outcome on 31 January 2022 and asked to attend a meeting on 2 February 2022.
Restructure and redundancy
Meanwhile, in January, Appelby presented a report to the school’s governors regarding the proposed reorganisation.
Appelby proposed that Ware’s attendance/medical role and the welfare officer role be merged to create one full-time role, and that Ware’s pool plant operator and swimming school co-ordinator roles be merged to create another full-time role. She proposed a formal consultation period from January to March 2022.
The proposed restructure was adopted by the governors at a meeting on 27 January 2022 where Appelby said the two new positions would be advertised and all applicants interviewed. There was no suggestion Ware would be prioritised for either role.
On 2 February 2022, Ware attended a meeting with Appelby as requested, which she had thought was about the disciplinary process, but where she learned the governors had already voted to approve the plan to “delete her role”. The chair of governors, Ms Plummer, was also in attendance.
Appelby told Ware she would be able to apply for the roles once job descriptions had been created. She was told both roles would be advertised externally.
The tribunal did not accept Appelby’s evidence that the reason there was no consultation after 2 February 2022 was “because the claimant had asked to be made redundant”.
It did not accept that Ware made any such request nor that she gave any clear indication at all that she was not interested in either of the new roles, that she did not want to work full-time, or that she did not want to return to work.
The tribunal also rejected Plummer’s evidence that if Ware had indicated any interest in the roles, a consultation would have followed, but that Ware had rejected “out of hand any alternatives”.
“We do not accept that. No alternatives were given to the claimant for her to reject…. The claimant had not seen the job descriptions at that point. She did not know what the roles would entail. She did not know the salaries on offer. She did not know the exact hours on offer,” reads the judgment.
Requesting redundancy figures is not the same as saying you are only interested in redundancy” – Judge Smeaton
Ware was also informed at this meeting that her suspension had been lifted but that she was “to refrain from her pool plant operator role” on her return to work. No justification was provided for that.
“This is, in our view, a clear example of the claimant being treated unfairly,” said the tribunal. “It indicates to us that, notwithstanding the absence of any established case of gross misconduct, Ms Appelby did not think the claimant was ‘up to the job’ and did not want her to return to the role.”
‘Garden leave’
Plummer told Ware she could stay at home pending receipt of the job descriptions and her decision on how to proceed.
Ware remained at home from February until May 2022, awaiting further information from the school about the new roles. Although she did not personally send any emails chasing the job descriptions, her union representative sent an email to HR three weeks after the meeting confirming that Ware was told to take “garden leave” (his words) until the new job descriptions were available. He also asked when the consultation process would start.
HR said it never received the email, but the tribunal accepted it was sent and accurately reflected Ware’s understanding at the time. It also supported the tribunal’s finding that Ware had not made clear she wanted to take redundancy.
During this three-month period, Ware corresponded with the school about errors in her payslips and, in order to understand her options, she sought an accurate indication of her likely redundancy pay, were she to proceed down that route.
“Without that, she could not assess whether she could afford to retire or compare the likely redundancy pay with any new potential salary. Requesting redundancy figures is not the same as saying you are only interested in redundancy,” reads the judgment.
On 5 May 2022, the school emailed Ware with an ultimatum: either she accept the redundancy figure, or return to work on 9 May.
The judgment said that Ware “felt under extreme pressure and reluctantly accepted the redundancy package, feeling very uncertain about her future options”. Her last day of employment was 31 May 2022.
Job descriptions for the two new roles were created in May 2022, shortly after Ware accepted the redundancy payment.
The tribunal accepted that, if the job description and advert for the role of “swimming pool manager” had been created and offered to the claimant before 5 May, it is likely she would have accepted it. She held all of the desired experience, qualifications and training for the role. The salary was significantly higher than she had been previously paid.
Age discrimination decision
Employment judge Smeaton said the school had presented Ware with a binary choice: “Accept redundancy or return to work and apply, on a competitive basis, for an undefined role.
“She was left at home waiting for clarification for approximately three months before she concluded that she had no option but to accept the offer of redundancy. These failings were the responsibility of the respondents.”
The tribunal found that Ware was unfairly dismissed, both substantively and procedurally.
It accepted that “the claimant has proved facts from which, in the absence of a non-discriminatory explanation, the tribunal could infer that a hypothetical comparator would have been treated differently and that the reason for the treatment was her age”.
The judge said: “We accept that the comment made on 24 November 2021… and the dismissal form a continuing act of discrimination. Ms Appelby made the comment… because she was contemplating a reorganisation and expected the claimant to retire due to her age.
“Ms Appelby did not engage in meaningful consultation (etc) for the same reasons. They are not isolated, specific acts, but part of an ongoing state of affairs which started with Ms Appelby’s first approach to the claimant about the new structure and ended with the claimant’s dismissal.
“Accordingly, as the allegation of discrimination in respect of the dismissal is in time, the earlier act of discrimination is also in time.”
A remedy hearing will be scheduled for a later date.
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