Saying “We All Won’t Be Here Forever” to 71 Year Old Employee Labelled “Inherently Ageist” in Age Discrimination Case

In Mrs J Ware v London Borough of Ealing and The Governing Body of Horsenden Primary School, an employment tribunal ruled the school had been ageist. This occurred after the headteacher said, “We’re not all going to be here forever”, pushing the employee out. Below, we explore what happened and why it was determined that age discrimination at work had occurred.

The Facts in Mrs J Ware v London Borough of Ealing and The Governing Body of Horsenden Primary School


Mrs Ware (“The Claimant”) began working for Horsenden Primary School (“The Respondent”) on 15 July 2013, at 62 years old. Before experiencing ageism in the workplace, she’d worked three roles: attendance/medical officer, pool plant operator and ‘seahorse’ swim school coordinator.

The Claimant Experiences an Ageist Remark

On 24 November 2021, the claimant was called into a meeting by Ms Appelby, the school’s headteacher. Here, Ms Appelby informed her of the respondent’s welfare officer’s upcoming retirement. The headteacher added that she planned to combine the welfare officer’s role with her attendance/medical officer role.

Initially, she believed she’d be taking on the added responsibilities of welfare officer. However, Ms Appelby quickly corrected this. She felt the claimant should leave her attendance/medical officer role to focus on the swim school. During the meeting, it was alleged Ms Appelby said, “We’re not all going to be here forever”.

The claimant objected to these changes, though, as the swim school had limited monthly hours. She explained how the substantial reduction in work would significantly affect her income. As such, she wanted to negotiate a new swim school contract.

Two days later, she emailed the respondent about the meeting. She brought up the “We’re not all going to be here forever” comment as ageism in the workplace and clarified her intentions not to retire.

Headteacher Investigates Claimant for Gross Misconduct

In December 2021, the headteacher began investigating the number of closures the school’s swimming pool had experienced. Following Covid restrictions, the school had increased the volume of external swimming pool bookings to boost income. Consequently, the pool’s water quality had been negatively impacted, partly causing the facility closures.

Throughout the investigation, Ms Appelby decided not to consult the claimant nor provide her much meaningful input into the report. This surprised the tribunal as they understood Ms Appelby to consider the water quality her responsibility. However, during proceedings, the headteacher reasoned her potential negligence and gross misconduct concerning the water quality meant she felt the investigation needed to remain private.

On 5 January 2022, the claimant learned of the investigation against her due to the pool closures and received a letter inviting her to a disciplinary meeting. She felt this was another instance of the school being ageist, trying to force her out. Subsequently, in an attempt to clear her name, she requested information concerning the dates of the pool closures. 

Claimant Suspended for Allegedly Threatening Colleague

On 6 January, the claimant was handed a suspension letter pending investigation from Ms Appelby. The headteacher claimed a staff member had visited her visibly shaken, alleging the claimant had threatened them during her request concerning pool closure dates. She explained how this led to her decision, as she was worried other staff members could be threatened.

Yet, the tribunal learned how the supposedly upset staff member had requested her colleague to check on the claimant following her suspension. They thought this would have been an odd thing to do had she felt threatened.

Then, on 19 January, the claimant attended the investigation meeting. Here, it became apparent the headteacher had misunderstood the time the claimant had to devote to pool duties. Ms Appelby had mistakenly believed she was contracted to 6.5 hours rather than 2.5 hours a week. As such, she determined further disciplinary action was unjustified as the claimant couldn’t be responsible for water quality, given her limited hours.

The claimant learned of this decision on 31 January and was invited to a meeting arranged for 2 February. She knew not of the meeting’s agenda and incorrectly assumed it regarded the investigation. 

Garden Leave?

The meeting concerned the role changes, first brought up on 24 November 2021, when the ageist remark was made. This occurred because, on 23 January, Ms Appelby had proposed the new roles to the school’s governors, who agreed to the changes four days later. The headteacher stated that the roles would be advertised and interviewed for without the claimant being offered priority.

During the meeting, the claimant also learned that her suspension had been lifted but was instructed “to refrain from her pool plant operator role” without justification. Then, she was told to stay home until she received the job descriptions for the new roles and decided what to do. As such, she remained at home until May, awaiting information about the new roles. 

Despite not chasing the job descriptions herself, her union representative emailed the school three weeks after the February meeting. The representative confirmed she’d been asked to take ‘garden leave’ and requested further information concerning the school’s reorganisation. The claimant also emailed the respondent, asking for details concerning redundancy pay.

It was clear to the tribunal, that the claimant’s email wasn’t an indication of her desire to be made redundant. Instead, they considered it a move to understand the feasibility of retiring, comparing redundancy pay with the salaries of the new roles. They stated, “Requesting redundancy figures is not the same as saying you are only interested in redundancy”.

Claimant Pushed Out Alleging School is Ageist

Then, on 5 May, after hearing nothing about the job descriptions, the claimant was given an ultimatum. Accept a redundancy figure or return to work on 9 May, without mention of the new roles. Reluctantly, the claimant accepted the redundancy package, having felt extreme pressure and uncertainty about her role going forward. Her employment ceased on 31 May.

Interestingly, the respondent posted the adverts for the new roles shortly after the claimant decided. Some months later, the claimant commenced early conciliation before bringing her claims to an employment tribunal on 3 October. She made claims of unfair dismissal and age discrimination in the workplace.

The Employment Tribunal Rules School is Ageist

The employment tribunal established that the respondent’s conduct was unfair. This was because they didn’t discuss the new roles with the claimant and provided an ultimatum comprising undefined roles. As such, they ruled the claimant had been substantively and procedurally unfairly dismissed.

Then, the tribunal considered her age discrimination at work claims. They started by outlining that the “We’re not all going to be here forever” comment was an example of age discrimination. That’s because the respondent wouldn’t have said it to someone under 50 in her shoes, clearly referencing her proximity to retirement.

Following this, they outlined how the claimant’s dismissal satisfied age discrimination in the Employment Act. They reasoned that the school had made their minds up about pushing the claimant out because of her age. Had a younger hypothetical comparator been in similar circumstances, the job descriptions wouldn’t have been withheld, and they wouldn’t have been unfairly dismissed.

Therefore, the tribunal concluded the school had been ageist and ruled in favour of the claimant’s age discrimination claims. A remedy hearing will now be arranged to address the claimant’s compensation.

If you have experienced age discrimination in the workplace and want to claim compensation, contact Redmans Solicitors now. We are employment law specialists and could assess your eligibility to make a claim.

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