Age discrimination legislation has been around since 2006 and so is celebrating its 10th birthday this year. However, even after it’s consolidation into the Equality Act in 2010, age discrimination still feels like one of the newer categories of discrimination and some workplaces still seem to be catching up with the idea that inappropriate references to age in the workplace can land them in the same kind of legal nightmare as inappropriate references to gender or race.
The employment tribunal decision in Dove v Brown & Newirth Ltd shows that, not only can nicknames related to a protected characteristic be harassment, but they can also be part of the evidence in other types of discrimination claim. Even if the nickname is not meant to be offensive, and appears to be accepted by the individual, it does not mean that it cannot be considered discriminatory.
Mr Dove was a salesperson and had always been called ‘Gramps’ by younger salespeople where he worked. He seemed comfortable with this nickname and even used it when referring to himself.
However, when his key accounts were removed and he was eventually dismissed due to descriptions from customers that he was ‘old-fashioned’ and ‘long in the tooth’, he claimed age discrimination in the employment tribunal, which was upheld.
The tribunal ruled that the dismissal was influenced by the customer’s discriminatory and stereotypical views, and that the company accepted these views without further enquiry or question. When reaching its decision, the tribunal also considered that referring to Mr Dove as ‘Gramps’ suggested that ageist attitudes were tolerated in the workplace. Mr Dove was awarded a total of £63,391.
The above view of age discrimination is focused on an older worker, but we should also be aware of age discrimination against younger workers, e.g. casual reference to younger employees being inexperienced.
What can you do?
So, it may be worth casting a fresh eye around your business and thinking about age discrimination. Do you still have a compulsory retirement clause in your contract or handbook? Do you have age related entry levels to some jobs? Are nicknames used around the workplace that could be considered discriminatory? Is there regular banter about specific individuals that would make uncomfortable reading in the cold light of an Employment Tribunal hearing?
In the case above, the company may have found it a useful process to gain full feedback from the clients regarding Mr Dove’s behaviour, and then working with him to readjust his behaviours to suit this customer base through their normal performance appraisal process. Simply assuming that his age meant that he could no longer develop or change his behaviours was their key mistake.
If you find that you have an employee whose behaviour is falling short of what is needed, we can help you find a way forward that avoids potential claims of discrimination. If you’d like to talk about this, then give us a call on 0203 319 1649.