Getting the balance right between having a healthy culture where employees can have a laugh but not cause offence and fall foul of discrimination law is a tricky issue for employers.
This was shown recently when a nursing assistant sued her employer for age discrimination when a younger colleague suggested that an operation would have been free on the NHS ‘back in your day’.
The nursing assistant was offended by this and took her employer to Tribunal, where the judge commented that, in this context, ‘back in your day’ meant ‘at the time that you were the same age as I am now, which was a significant time ago’.
The colleague meant no offence but the judge agreed with the complainant that it was ‘unwanted conduct …. Related to age’, and described it as a ‘barbed and unwelcome comment’.
So why was this apparently innocuous comment so risky for the employer? The definition of (age) harassment as per Acas is:
Unwanted conduct (related to age) that is reasonably considered by that person to have the effect of violating his / her dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him / her, even if this effect was not intended by the person responsible for the conduct.
As you can see, the fact that the colleague meant no offence by the comment is irrelevant in law.
But why did the nursing assistant claim against the organisation not the individual who made the comment? Under the law of vicarious liability, employers are responsible for the actions of their employees at work and employers tend to have deeper pockets than individuals, so it is generally they who are sued!
Other, similar examples that employment judges have found to be ‘less favourable treatment’ due to age are:
- Offering a seat to an older worker at work, when you had not done the same for younger workers.
- Referring to a colleague as grandma, even as a term of endearment.
- Suggesting that an older colleague may be more suited to a ‘traditional’ estate agency.
What a minefield! To help employers with this, and other types of banter and behaviour at work that may result in complaints or Tribunals we have produced a short video training course in conjunction with the brilliant e-aspire training consultancy. Details to follow shortly.
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