Age discrimination: ten years on and it's alive and kicking

09 May 2016


Contrary to what many may believe, harassment related to age appears to be alive and kicking in the 21st century workplace, despite age discrimination being outlawed a decade ago.

There have been several recent examples of the type of workplace 'banter' that not only results in successful discrimination claims but also leads to the kind of adverse publicity that most employers would be keen to avoid. So calling an older employee 'Yoda' and altering a car number plate to read 'OAP' is, according to the employment tribunal, harassment related to age and therefore discriminatory.

And it's not only older workers who have succeeded with their complaints. Younger workers have the same protections as are available to older workers. For example last year saw the term "stroppy teenager" being held to be harassment and age discrimination by an employment tribunal when used to describe an 18 year old female worker.

And so it goes on

Take the case of Dove v Brown & Newirth Limited. Mr Dove was awarded £63,000 in compensation for age discrimination and unfair dismissal, including an award of £9,000 for injury to feelings. Both the broadsheets and the tabloids picked up the story along with the trade press.

So how did the issues that led to this successful claim arise? Mr Dove was employed as a sales rep for Brown & Newirth, a UK wedding ring manufacturer. He had worked for the company since 1990 and had responsibility for middle England, South Wales and the Channel Islands. A new sales director, Mr Ball was appointed in 2011 and he in turn appointed a new salesman, Mr Thomas, with whom he had worked before. Mr Thomas covered the northern territory and became Head of Sales in early 2014. Mr Thomas was in his 30s and the remaining sales team, with the exception of Mr Dove, were in their 30s and early 40s. Mr Dove was in his late 50s at the time.

The tribunal judgment records that at some point Mr Thomas began to use the nickname 'Gramps' when referring to Mr Dove. This went on for several years. Although Mr Dove made no complaint about the nickname to his employer the tribunal accepted his evidence that he found the term disrespectful and hurtful.

Ultimately Mr Dove was called into a performance management meeting to be told that there were issues with his performance. There were two meetings with Mr Dove, one in 2013 and one in 2014. No subsequent action was taken and the concerns raised by customers were never raised with Mr Dove and at no point did his employer or any of his customers raise concerns with him directly.

In 2015 he was told that five of his customers were being transferred to Mr Thomas. Evidence would later be given that one of those customers had described Mr Dove as "a bit long in the tooth" and "old fashioned". He was advised that if alternative work could not be found his employment would be terminated. He was subsequently dismissed in April 2015.

Last month the employment tribunal agreed that the term 'Gramps' was not a term of affection as was suggested in the evidence by Mr Thomas, but a discriminatory comment. That, along with the customer comments which the tribunal found were more likely to be applied to older people, led to the tribunal's finding of age discrimination. They also found that there was no fair reason for the dismissal and Mr Dove's claims succeeded.

What are the lessons learned?

Clear, unambiguous policies that ensure employees understand that such banter is unacceptable are crucial, as is training for employees. Practical interactive training will give employees an opportunity to explore the issue of banter in order to better understand what is and is not acceptable in the workplace.

An awareness of the impact of the actions of third parties is also helpful to ensure that employers don't inadvertently adopt the discriminatory practices of customers and clients. Refusing to condone discriminatory behaviours on the part of third parties will help employers defend against these types of allegations.

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This article was originally published on Thomson Reuters.


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