Watch your words – the risk of age discrimination
The concept of age discrimination has been with us since 2006, and despite the fears expressed by some when it was introduced, claims relating to ageist comments have been relatively few in number.
However, the fact that claims in respect of ageist comments are relatively rare does not mean that employers and their employees should not consider the potential implications of what they say. This was illustrated in the recent Employment Tribunal case of Gomes v Henworth Limited trading as Winkworth Estate Agents and Gold (2017). Ms Gomes was 59 and had worked for the estate agency since 2009 as an administrative assistant. In February 2016, the agent’s lettings director had a meeting with Ms Gomes to discuss her work, and during that meeting he told her that she needed to be more careful. Ms Gomes was upset by this and she spoke to her line manager, who then spoke to Graham Gold, one of the directors, about the situation. This was followed by a further meeting between Mr Gold and a number of other staff, where Mr Gold told Ms Gomes that she was too focused on an old piece of software which was now hardly used by the agency, and had not been paying enough attention to new methods of working that she had been trained on in 2015.
In March 2016, Mr Gold met with Ms Gomes again and told her: “This marriage isn’t working.” Ms Gomes asked what he meant by this and he referred to a letter which had been written by Ms Gomes to a solicitor which included numerous errors, including referring to the solicitor as a deceased client’s son and referring to the deceased as Mrs rather than Mr. Mr Gold told her that a note would be placed on her performance record. So far so good!
However, Mr Gold then told Ms Gomes that she would be “better suited to a traditional estate agency”, which Ms Gomes claimed she took to mean he thought she was too old to work in that particular office. She asked Mr Gold to explain what he meant by that and he told her to “sleep on it and decide what you want to do”. Ms Gomes said she took to mean he thought she should leave the business. At the time, she had intended to stay with the company until she retired at 65.
Ms Gomes then raised a grievance, and also went off with stress. The outcome of the grievance concluded that Ms Gomes should have some more training, and also found that the original meeting with Mr Gold should have been handled better. Ms Gomes was not satisfied with this and resigned and brought claims of unfair constructive dismissal and age discrimination. The Tribunal found in her favour. They held that the words “better suited to a traditional estate agency” was a reference to her age and that it was unlikely to have been used by Mr Gold to a younger employee.
This case illustrates that words used can be held to be discriminatory on the grounds of a person’s age, even if no mention is made of the person’s age, or they are not described as young or old etc. Each case will of course be decided on its own facts, and as mentioned, this case is only at Employment Tribunal level, so is not binding on any other Tribunal, but it does show how thoughtless comments can lead to serious consequences. It also illustrates the need for employers to ensure managers are up to date with their equalities training, so as to make them aware of how to avoid these kinds of issues. We have run fun practical sessions for many employers over the years - do get in touch if we can help your organisation.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or firstname.lastname@example.org).