In a recent tribunal case, a Tribunal decided that it was age discrimination when an employee was referred to as a grandmother at work. So how did a car review referring to “comfy wheels for a grandmother” steer an employer into the path of a Tribunal claim.
Age is one of nine “protected characteristics” covered by the Equality Act 2010. Under the Equality Act 2010, it is unlawful for an employer to:
- Discriminate directly by treating a job applicant or employee less favourably than others because of age without objective justification.
- Discriminate indirectly by applying a provision, criterion or practice (PCP) that disadvantages job applicants or employees of a particular age group without objective justification.
- Subject a job applicant or employee to harassment related to age.
- Victimise a job applicant or employee because they have made or intend to make an age discrimination complaint under the Equality Act 2010, or because they have taken action or intend to take action in connection with the Act.
The case in question concerned a claim of direct age discrimination.
Mrs Dopson was employed by Stag Publications Ltd, a publishing, media and events company which produced a number of automotive trade publications. Mrs Dopson was a sales director and had been employed by the company since 2002.
In May 2017, one of the company’s publications, called Fleet World, published a review of a Renault Kadjar. The review mentioned that Mrs Dopson – who was 62 at the time – along with other employees had driven the vehicle and went on to comment as follows: “which basically means that it has had three spells as family transport, one as ride for the bachelor about town and the other as comfy wheels for a grandmother….You can choose who applies to which category”.
Shortly after this review was published, Mrs Dopson raised a grievance in which she referred, amongst other issues, to the article. She said that the fact it referred to her as a grandmother did not “sit well” with her and “apparently raised a laugh in the office”. She went on to say that “in light of people being told that I am leaving/retiring” (a claim the employer denied), “this can only highlight my age to everyone”. She said that she had “no problem being a grandma” but she did not agree with “what could be perceived as a dig at my age”.
Mrs Dopson’s grievance was investigated but it was not upheld, nor was her appeal. After receiving the appeal outcome, Mrs Dopson resigned and brought claims of constructive unfair dismissal, unlawful deduction of wages and age discrimination against her employer in the Employment Tribunal.
The Tribunal decided that the reference in the review to Mrs Dopson and the vehicle being “comfy wheels for a grandmother” was detrimental treatment and less favourable treatment because of her age. This was, therefore, direct age discrimination under section 13 of the Equality Act 2010.
However, Mrs Dopson did not claim that this article was part of a continuing act of discrimination, nor did she rely on it as part of an accumulation of conduct which, taken together, amounted to a breach of the implied term of trust and confidence. The article was, the Tribunal held, an “isolated incident and was peripheral”.
As a result, because Mrs Dopson’s claim of age discrimination in relation to the article was brought outside the normal time limit of 3 months (Mrs Dopson commenced Acas early conciliation more than 3 months after the article was published), her claim was out of time. The Tribunal considered whether there were grounds to extend the time limit for making the claim on a “just and equitable” basis but concluded that there were none.
Mrs Dopson’s claim of age discrimination therefore failed because it was out of time and the Tribunal did not have jurisdiction to hear it.
Ms Dopson’s other claims for constructive dismissal, age discrimination and wrongful dismissal were also unsuccessful.
Points to note
The interesting point – although perhaps not a surprising one – about this case is the Tribunal’s finding that, by referring to Mrs Dopson as a grandmother, her employer had discriminated against her because of her age. Mrs Dopson felt that the reference in the article to her being a grandmother was a dig at her age and raised a laugh at her expense and she was not happy about that.
What is surprising about the case is the way it has been reported in the media. The angle taken by some media outlets has been that because Mrs Dopson was a grandmother, she should not be affronted by being referred to as a grandmother at work. However, the fact that she was a grandmother is irrelevant. Everyone has the right to be treated with dignity and respect in the workplace and that includes not being stereo-typed, labelled or defined by a protected characteristic. Although Mrs Dopson was, in fact, a grandmother, she clearly didn’t want to be defined as or referred to as a grandmother at work, particularly if it was to have a “dig” or a joke at her expense.
There have been other cases in the employment tribunals over the years where employees have been successful in claiming age discrimination based on ageist remarks or stereo-typical assumptions associated with age.
In the case of Kirk v Citibank N.A. and others ET3200291/2018, the employee was found to have been directly discriminated against when he was dismissed after being told “you’re old and set in your ways” and because he was considered less “agile” than another employee.
In another case, Perrin v Christophers and Sons Ltd ET/1401278/14, Mrs Perrin, aged 63, was made redundant from her role as a receptionist because she was told that a new role had been created that she was unsuitable for. The tribunal upheld her claim after finding out that the new role was not that different to her old one and that her employer said he intended to replace her with “a young, fit blonde.” More recently, in the case of Crompton v Eden Private Staff Ltd, an employee won her claim of age discrimination after her employer admitted joking on several occasions that she had Alzheimer’s disease and that everyone in the office called her “dementia Debbie”.
What Mrs Dopson’s case and all of these cases demonstrate is that what might be “banter” or a “bit of a laugh” to one person, may be offensive or hurtful to another and it is important to ensure that employees are aware of what constitutes acceptable conversation and behaviour at work.
Litigation is rarely in anyone’s best interests, and this is a case in point – there were no real winners here, except you may say, the Renault Kadjar, which, Fleet World’s review concluded, is “stylish on the outside and functionally superb on the inside.”