Friday, January 17, 2020

I've Come To Wish You An Unhappy Birthday

The Law Society Gazette reports that a legal secretary has failed in an Employment Tribunal Claim for Age Discrimination and Whistleblowing Detriment after a dispute arose in relation to colleagues marking her 50th birthday.

Ms Munro worked for a firm of Solicitors in Sailsbury. She is by all accounts a very private person and in particular regarded her age as something she preferred to keep to herself.

When she had some time off for her birthday, colleagues deduced (because one of them had been at School at the same time as her, and also because her date of birth was publicly available on the Companies House website) that she had turned 50.

On her return to work a colleague made a comment along the lines of  "It was your 50th wasn't it? You can't hide it, you know."

Although the remark was intended light-heartedly, Ms Munro appears to have taken quite genuine offence about it and complained to her employer. She alleged that the colleague had "jumped at her like a snake." 

The following month, as a result of complaints about her performance the Firm decided to start disciplinary proceedings against Ms Munro. She was offered a Settlement Agreement as an alternative but negotiations broke down and she resigned.

She subsequently brought a Claim alleging that the actions of her colleague were age-related harassment and direct discrimination and that the Firm had subjected her to detriments because she had raised public interest disclosures about alleged confidentiality concerns after being offered the Settlement Agreement.

The Tribunal rejected the Claims.

It found that the comments were trivial and not meant maliciously. It reminded itself that whilst intent is not a necessary element of a harassment Claim, the Tribunal does have to find that Ms Munro's perception that it violated her dignity or created an unacceptable environment for her was reasonable and that the treatment must be of a particularly bad nature. Any other approach would trivialise the law.

Whilst it accepted that Ms Munro was genuinely upset, and that the colleague had probably realised that she had "put her foot in it", it was not reasonable for her to have reacted as she did.

The Direct Age Discrimination Claim failed because there was no evidence that a comparator of a different age would have been treated any differently.

In relation to the Whistleblowing Detriment Claim, the disclosures were made in Ms Munro's self-interest and there was no basis for a reasonable belief that they were in the public interest (as the law requires.) To the extent that there was any detrimental treatment at all, it was not because of any disclosures anyway.

Not only were the Claims dismissed, but Ms Munro was ordered to pay £1700 towards the Firm's costs. In addition to the weakness of her Claims the Tribunal took into account that she had unreasonably rejected sensible offers of settlement.

The case is a first instance decision and does not set any precedent for other cases. It does not anyway mean that "jokes" about age can never give rise to a Claim. If someone made, or persisted in, such comments when they knew that they would upset the recipient, or if there was malice behind them, then the situation could well be different. As damages for discrimination can be unlimited, and include substantial amounts for injury to feelings, employers should ensure that they have robust policies against discrimination and harassment and that employees know what is expected of them in terms of treating others with respect and dignity.