Did “office banter” about an employee’s memory amount to age discrimination?

In Crompton v Eden Private Staff Ltd the Employment Tribunal considered claims made by Mrs Crompton for direct discrimination and harassment because of her age after her manager made a series of jokey comments to her about having Alzheimer’s disease.

The facts

Mrs Crompton was 57 when she started working in March 2018 as an administrator for Eden Private Staff, which provides an introductory service for domestic staff.

In January 2019, Mrs Crompton switched to the role of search consultant and was subject to a probationary period in her new role.

In March 2019, two of Mrs Crompton’s managers met with her and discussed errors in welcome letters and CVs that she was sending out.

The same managers met with Mrs Crompton again on 18 April, where they raised a number of specific issues, including asking her to check letters and CVs more carefully before sending them out.

By 24 May, Mrs Crompton’s managers felt that it was taking her too long to learn the basics of the role and due to her continued poor performance, they took the decision to dismiss her. Mrs Crompton was notified and given a letter of dismissal the same day. The reason given was “inadequate performance during extended probation period”.

On 14 June, Mrs Crompton submitted a written grievance in which she contested that performance issues were the reason behind the decision to dismiss her. She stated: “I feel you have treated me unfairly in connection with age discrimination.” This was the first time that she had raised any complaint in relation to this.

Eden Private Staff asked an external HR consultant to investigate the grievance. The consultant had a telephone conversation with Mrs Crompton on 19 June, where it came to light that one of her managers had suggested on several occasions that she had Alzheimer’s disease. She said that comments were made to her such as “Is it Alzheimer’s again?” when she had forgotten something. She said this happened about once a week.

The next day, the consultant spoke with the manager concerned and asked if she had made any comments about Alzheimer’s. The manager accepted that she had, and explained it was “a bit of a laugh and joke” among colleagues.

The HR consultant submitted an investigation report and subsequently, a letter was sent to Mrs Crompton upholding one of her grievances relating to the extension of her probation period. All other grievances were dismissed. Mrs Crompton then submitted claims of direct discrimination and harassment because of her age to the Employment Tribunal.

The law

In relation to direct discrimination:

• A person (A) discriminates against another (B) if, because of a protected characteristic (in this case, Mrs Crompton’s age), A treats B less favourably than A treats or would treat others.

In relation to harassment:

• A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The Employment Tribunal’s decision

The Tribunal found that part of Mrs Crompton’s claim of direct discrimination had been made out. The Alzheimer’s remarks were detrimental and were less favourable treatment than the manager would have afforded to a materially younger search consultant.

Turning to the claim for harassment, the Tribunal found that the Alzheimer’s comments were age related and that Mrs Crompton did not want remarks of that sort to be made to her. The Tribunal doubted that the purpose was to violate Mrs Crompton’s dignity as the comments were considered by her manager to be “no more than office banter”. However, this did not “detract from the fact that it was reasonable for Mrs Crompton to find the remarks intimidating, hostile, degrading, humiliating and offensive.”

Significantly, in terms of the remedy, the Tribunal found that Mrs Crompton’s dismissal was based on her performance and her age was not a factor.

The Tribunal awarded Mrs Crompton £900 as compensation in respect of the direct discrimination and harassment together with interest of £100.41, noting that the evidence suggested “any injury having been slight” and that no complaints were lodged at the time the remarks about Alzheimer’s were made.

Conclusion

Although this case is not binding on other Tribunals, it serves as a reminder to employers that comments made by them to employees in jest could still be found to be discriminatory. Employers’ reputations can be damaged by such cases even where, as in this matter, the award of compensation is for the lowest amount that can be awarded by the Tribunal. Employers can also be held liable for discriminatory comments made by one employee to another, unless they can show that they took all reasonable steps to prevent the employee from making such remarks, for example by providing proper training as to what is acceptable language to use in the workplace.