Age discrimination in the workplace is a very real and heavily ingrained issue. From bias during the recruitment process to being denied training and development opportunities, it’s an unfortunate reality of modern workplaces that older workers are often treated less favourably than their younger counterparts.

Ageism is one of the most common forms of unfair treatment at work. In fact, according to one 2019 study, 37% of employees aged 45 and over say that age discrimination is an issue in their place of work, with those aged between 55 and 59 feeling this most strongly.

Age is one of nine characteristics protected under the Equality Act 2010, and it is illegal for employers to discriminate, either directly or indirectly, on the basis of a person’s age. From one off-instances such as a demeaning comment or age-related joke, to a rule or policy that disproportionately affects or excludes a particular age bracket, employees who have been subjected to detriment on the basis of their age may have grounds to bring a claim.

In many cases, employees present compelling arguments; for example, a Tribunal held that the decision to dismiss an 89-year-old NHS secretary for “not being able to use computers” was shrouded in discriminatory attitudes, and in a separate case, an Oxford Professor who was forced to retire at 69 was found to have been was unfairly dismissed and discriminated against on the basis of his age. However, in an era where many peoples’ first inclination when they feel wronged in some way is to take legal action, disgruntled employees will occasionally try to frame seemingly innocuous acts as age discrimination, as a recent case has shown.

Munro v Sampson Coward LLP

The claimant in this case, Ms Munro, worked for a law firm as a legal secretary. In May 2018, she left the workplace early after a colleague, in a conversation about Ms Munro’s recent week off, commented: “It was your 50th wasn’t it? You can’t hide it you know”. Ms Munro claimed that she was so profoundly affected by the “insensitive, humiliating and insulting” remark that she was unable to concentrate further that afternoon, prompting her to take the rest of the day off and call in sick the following day as well.

On her return, Ms Munro presented a letter to a partner at the firm, in which she described feeling “ambushed, punched, slapped and humiliated” by the “unsolicited” comments about her age. “I come to work to earn money”, she wrote, “I’m a private person with a belief that personal matters can remain private and should do so if the individual wishes”.

Faced with the need to take disciplinary action for leaving work unauthorised, in combination with long-running concerns about her performance, the firm’s partners decided it was best to part ways amicably. By way of settlement, they offered Ms Munro an agreed reference and one month’s salary plus £1,700. However, while the offer was on the table, Ms Munro made three whistleblowing disclosures concerning data privacy at the firm, arguing that her age must have been leaked from her personnel file. “I have serious concerns that there is a public interest issue here”, she stated in a second letter, “as, if my data can be breached, any other person’s data you are holding, including those of clients, could be breached”.

In order to bring a claim for unfair dismissal, employees must have at least two years’ service. As Ms Munro had only been with the firm for around six months, this option wasn’t available to her, and the firm’s partners suggested to Ms Munro that she had only made protected disclosures in order to rely on whistleblowing protection. Under the Public Interest Disclosure Act (PIDA), it is illegal for employers to reprimand, victimise or dismiss an employee for speaking out about malpractice – in this case data protection violations – and employees can bring whistleblowing claims irrespective of length of service.

Employment Tribunal

Ms Munro followed through with claims for harassment, direct age discrimination and detriment from making public disclosures. In regard to the latter, after considering the facts of the case, the Tribunal held that:

While Ms Munro’s disclosures could be viewed as being in the public interest, it was clear that she had made them “for reason of pure self-interest”.
Information on her age did not necessarily point to a data breach as Ms Munro had made mention of her age to a fellow secretary at the firm.
The disclosures had been made to improve her position after realising that bringing an ‘ordinary’ complaint for unfair dismissal was not an option.
The language used in the disclosures had been lifted from statute, suggesting that Ms Munro had litigious intentions.

In relation to the claims for harassment, the Tribunal held that Ms Munro’s sensitivity about her age was “unusual and extreme” and that, by most people’s standards, the comment made to her was trivial and nonmalicious.

Turning to the claim for age discrimination – in particular, reference to the fact that the firm had sent Ms Munro a birthday card – the Tribunal determined that this was the firm’s usual practice and there was insufficient evidence to suggest that Ms Munro’s similar aged colleagues would have been treated any differently.

Ultimately, the claim was dismissed, with the Tribunal concluding that Ms Munro had “artificially attempted to cloak herself with the protection affording by the whistleblowing legislation by making disclosures which had not been in the public interest”.

James Tamm

Director of Legal Services

Expert Comment

This case is a good example of both the objective and subjective parts of the test for harassment. The Tribunal looks not only at whether or not the claimant took offence at the comments but whether it was reasonable for him or her to do so. Clearly, the objective limb of the test here was not met. 

It also highlights how often claimants will try and present personal grievances as protected disclosures. This can sometimes be difficult to judge  where does the private interest stop and the public interest start?  so you should always take advice when whistleblowing is raised. 

One may also be surprised that what appears to be quite a weak case made it all the way to a full hearing. Even though the Tribunal is under massive strain from ever-increasing claims, judges are very reticent about striking out claims without hearing the evidence. This is especially true when dealing with litigants in person as was the case here. 

Difficult employee?

At Ellis Whittam, we help employers to manage employee relations headaches before they destabilise your team or escalate into a full-blown claim. From sickness absence to misconduct, to allegations of harassment and discrimination, our team of legally-qualified Employment Law Advisers work closely with employers on a daily basis to help them achieve their preferred outcome quickly and compliantly.

To talk through your specific situation and find out more about our unlimited, fixed-fee service, call 0345 226 8393.

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