Birthdays at Work: How Comments Can Lead to Age Discrimination and Whistleblowing Claims

Year Published: 2019

In Ms H Munro v Sampson Coward LLP, the Employment Tribunal considered whether comments regarding Ms Munro’s birthday amounted to age discrimination and harassment. Ms Munro also claimed that she suffered detriment and dismissal on the grounds of whistleblowing when she informed her employer of the comments.

Background

Ms Munro, a legal secretary in the Litigation Department at Sampson Coward LLP (“Respondent”), made claims for harassment, age discrimination and detriment and dismissal on the grounds of having made public interest disclosures.

Ms Munro was on leave for a week in May 2018, during which her colleagues believed she would turn 50. Upon her return to work, a colleague either commented “it was your 50th wasn’t it, you can’t hide it you know” (colleague’s account) or “you are now 50. You can’t hide it from us” (Ms Munro’s account). Ms Munro left the office early that day which she said was because she was so upset and phoned in sick the day after. This comment formed the basis of her subsequent age discrimination claim.

Upon her return to work the following day, Ms Munro handed a letter to the Respondent which included the following comments:

Birthday gift on table at work

“Although I like Ms Norrie [the colleague who made the above comment], I am still extremely angry and upset with her utter insensitivity and blunt rudeness at coming to my desk and announcing to my face, very proud of herself, what she believed she knew about my passing years and rubbing my nose in it.

Her unsolicited and unwelcome comments left me reeling. I felt ambushed, punched, slapped and humiliated… I do not need her to be spoken to and I do not want an apology”.

On 8 June 2018, concerns regarding Ms Munro’s performance were raised by a colleague, Ms Samuels, during her appraisal. Following discussions, the partners resolved to commence a disciplinary procedure due to Ms Samuels’ loss of trust and confidence in Ms Munro. The partners also considered the alternative of securing a mutually agreed departure.

A draft settlement agreement was provided to Ms Munro. The Respondent’s position was explained with reference to Ms Munro’s perceived poor performance, Ms Samuels’ views and Ms Munro’s unannounced departure following Ms Norrie’s comment. The proposed settlement included an agreed reference, payment for one month’s salary in lieu of notice and £1,700 as an ex-gratia payment.

Following the meeting, Ms Munro informed herself of her rights. She discovered that she could not present a claim for unfair dismissal because she lacked two years’ service however, she discovered that she could have been protected from dismissal as a whistleblower.

Ms Munro then made what she claimed to have been her first public interest disclosure. Within it, she complained that her personal data had not been kept secure due to Ms Norrie’s knowledge of her age. She then made two further purported public interest disclosures, the last of which was raised as a formal grievance.

The Respondent denied Ms Munro’s allegations and refuted the allegations of breach of data security. It explained that Ms Munro’s date of birth and address were freely available on the internet as she is a director on Companies House and in any event, her date of birth had been obtained through a mutual friend who had been in her year at school.

Further without prejudice correspondence was sent by the Respondent requesting her to consider the settlement offer and notifying her that it would not be improved upon. The Respondent warned Ms Munro that it would seek costs from her in the event she pursues an Employment Tribunal claim. Ms Munro eventually resigned.

Observations and Judgment

The Tribunal noted that “the claimant is a private person and someone who does not share personal information at work. She is guarded about her personal details, including her age…but it was the practice within the office to mark birthdays with cards”. The Tribunal accepted the effects Ms Munro said Ms Norrie’s words had on her.

In regards to the harassment claim, the Tribunal held that Ms Munro’s sensitivity about her age “appeared unusual and extreme”. It noted that the “comment was trivial and had not been delivered maliciously…they ought not to have been considered as words of harassment when viewed objectively”. The Tribunal also noted that upholding the harassment complaint “would have been to cheapen the application of s.26 [Equality Act (EA) 2010]”.

In relation to the age discrimination complaint, the Tribunal held that there was insufficient evidence to suggest that Ms Munro was treated less favourably because of her age. Ms Norrie’s comments could have been said to anyone, of whatever age, who was celebrating a birthday therefore the age discrimination complaint was dismissed.

In relation to the whistleblowing complaint, the Tribunal held that her disclosures did not meet the public interest requirement and the disclosures were “made for reason of pure self-interest”. The Tribunal also considered the fact that Ms Munro made no disclosures before this incident, despite observing how client data had been kept for over six months.

All of Ms Munro’s complaints were therefore dismissed.

Costs Award

The Tribunal criticised Ms Munro as it concluded that Ms Munro “artificially attempted to cloak herself with the protection afforded by the whistleblowing legislation by making disclosures which has not been public interest…a deliberate attempt to make her case something that it was not”.

The Tribunal noted that the whistleblowing element to Ms Munro’s claim extended the hearing by two days. Accordingly, the Respondent was awarded costs of £1,700, which amounted to two days of its counsel’s refresher fees.

Age Discrimination Claims at Work

This decision should be welcomed by employers as it demonstrates that the Employment Tribunal is not overly sympathetic to individuals complaining of discrimination in instances where the individual is unusually sensitive. Furthermore, the Employment Tribunal is willing to assess the intention of the person making the comments that form the basis of the discrimination complaints and it will consider how such comments are objectively viewed.

Section 26(4)(c) EA 2010 states that in deciding whether harassment has occurred, the reasonableness for the conduct to have the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person must be considered. The Tribunal evidently had regard to whether it was reasonable for Ms Norrie’s comments to amount to harassment from an objective perspective, thereby ensuring common sense prevailed.

That being said, it is important for employers to seek legal advice as to whether comments and/or actions can amount to discrimination, before they are made, in order to mitigate risk in this regard.

Finally, as evidenced by the costs award, the Employment Tribunal will not take kindly to attempts to pursue claims that are not apparent from the facts; especially when they are pursued in circumstances where ordinary unfair dismissal is not possible due to a lack of two years’ continuous service. Costs awards are the exception rather than the norm in the Employment Tribunal, even more so where lay claimants are involved, so this decision is particularly noteworthy.

For more information on whistleblowing, discrimination at work, or Employment Tribunal claims, please do not hesitate to contact our Employment Law and HR team or get in touch on 0161 475 7676.

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