Age discrimination – drawing a line under “banter” in the workplace

Since the compulsory retirement age of 65 was abolished in April 2011, it is estimated that the number of over 65s remaining in work has risen by over one million. This number will undoubtedly increase as the years progress. Confirmation this week that shared parental leave will be extended to grandparents from 2018 onwards may also be seen as a reason for many to delay retirement in order to look after grandchildren.

The Government has gone to great lengths to promote equality in the workplace. Age is one of the “protected characteristics” under the Equality Act 2010. This protection prohibits discrimination, victimisation and forms of harassment where the reason is related to the age of the person involved.

Despite the efforts of the Government and equality campaigners, Employment Tribunals dealt with 197 cases of age discrimination in the three months from October to December 2015, the last statistics publically available. Below we highlight one of the most recent cases covering this area which shows that we still have a long way to go in the campaign for equality in the workplace.

In Dove v Brown & Newirth Ltd, Mr Dove was a 60 year old salesman with over 25 years’ experience in his industry. Mr Dove brought a claim for unfair dismissal and age discrimination in the Employment Tribunal. The Tribunal upheld Mr Dove’s claim for both unfair dismissal and age discrimination and awarded him £63,391.00.

Mr Dove had been employed since 1990 without any issue. In 2011, a new Head of Sales and a new Sales Director were appointed under a restructure. Mr Dove felt that key clients were subsequently moved from his remit to the new Head of Sales, Mr Thomas, who was in his 30s. 

Mr Dove had been for some years “affectionately” known by the nickname “gramps”, a nickname that was used latterly by the Head of Sales, without complaint by Mr Dove. In fact there was evidence that Mr Dove had referred to himself as “gramps” in an email.

In late 2013, Mr Dove was invited to a meeting to discuss improving his performance and relationships with a number of customers. Two further meetings took place in early 2014 and although a third meeting was set up for March 2014, this meeting did not take place. During this time Mr Dove continued to visit his customers and was unaware that any customers had directly raised issue with his performance.

In early 2015, Mr Dove was told in a meeting that five of his customers were transferring to the Head of Sales. This was followed by an email from Mr Thomas alleging that a client had stated that Mr Dove was “too long in the tooth” and that there were individuals who worked for the customers who no longer wished to deal with him. There was however, nothing in writing from these customers and they had subsequently denied making those comments. At the same time, Mr Dove was told that if alternative work could not be found for him there was a real risk his contract would be terminated. Mr Dove was dismissed on 1 April 2015 via letter sent by email.

Mr Dove followed his employer’s internal appeal policy, and appealed on the grounds that:

• he had seen no written evidence that customers did not want to work with him;
• he was not told in advance of the meetings that they would be about his performance; and
• it was unprofessional for him to be informed of his dismissal via email, rather than face to face.

Mr Dove claimed direct age discrimination under the Equality Act 2010. Direct age discrimination occurs where ‘because of age, A [the offender] treats B [the victim] less favourably than A treats or would treat others’. In cases of direct age discrimination only where an employer can show that its treatment of an employee is a proportionate means of achieving a legitimate aim, an employer may be able to justify discrimination. The Tribunal found in this case that this justification defence could not be made out; it rarely will be in cases of this type.

Mr Dove also brought a claim for harassment because of his age. In its judgment, the Tribunal stated that “although they accepted that the term “gramps” was not meant to be offensive…it does not mean that it was not discriminatory. Such a comment made once or twice might not cause offence but if used more often could lead to a real detriment. The fact that it was banter does not really assist the respondent.” In concluding that the banter amounted to harassment, the tribunal will have considered whether the banter amounted to unwanted conduct that had the effect of violating Mr Dove’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment. This would have involved its consideration of Mr Dove’s subjective perception of the alleged harassment, whether it was reasonable for the conduct to have had the effect of being degrading etc. and any other relevant circumstances.

Whilst the harassment wasn’t perpetrated by the employer itself, for the purposes of the Equality Act 2010, an employer can be liable for harassment as anything done by an employee in the course of their employment is treated as having also been done by the employer. An employer may be able to escape liability for the actions of its employees, for example where an employee’s conduct was so far removed from that which an employer would expect from an employee or an employer had expressly forbidden the employee to do any such act. 

The Tribunal was in no doubt that the phrase "long in the tooth" was a reference to Mr Dove's age. In addition, the tribunal said that phrases such as "old fashioned" and "traditional" are more likely to be applied to older people and may be the result of stereotyping. Whilst these views were expressed by customers, the tribunal suggested that the employer should have questioned more vigorously what the customers were saying rather than adopting their stereotypical attitudes themselves. According to the tribunal, the decision to dismiss Mr Dove without challenging the customers' views was tainted by age discrimination.

Not surprisingly, Mr Dove won his claims for age discrimination.

What does this mean for you or your business?

Despite a rising number of over 65s choosing to stay in work, only a small minority of employers are taking the issue of an ageing workforce seriously. Employers must consider employees as individuals, free from bias of age and should focus on other un-fixed attributes, such as their determination or their capacity to deal with clients.

What do you need to be doing now?

Employers should ensure that every step of the employment cycle, from initial interviews to retirement, is free from age discrimination.

When advertising for positions, there should be no references to age in advertisements and phrases such as “youthful enthusiasm” should be avoided. Employees should be considered on the basis of merit and their ability to fulfil the job requirements to the best of their ability, not on age.

All employees should be aware of the legislation around age discrimination and warned that such behaviour is unacceptable in the workplace. It is often easy to pass such throw-away comments off as banter, but as can be seen from the case above, such “banter” is not seen as acceptable by the Courts and Tribunals and could end up costing the business a lot of money.

Just because an employee joins in with the banter and does not immediately raise issue with it, this case also shows that banter could amount to discrimination at a later date and form the basis of a successful discrimination claim. 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.