In short, no. This stems from the case of Ms. H Munro v Sampson Coward LLP where the Employment Tribunal had to consider whether comments regarding Ms Munro’s 50th birthday amounted to age discrimination and harassment. Ms Munro also claimed that she suffered a detriment and was dismissed on the grounds of whistle-blowing.
In relation to the age discrimination claim, the Tribunal held that there was insufficient evidence to suggest that Ms Munro was treated less favourably because of her age. The comments could have been said to anyone, of whatever age, who was celebrating a birthday – therefore the age discrimination complaint was dismissed. 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 comments were “trivial and had not been delivered maliciously” and “ought not to have been considered as words of harassment when viewed objectively”.
Mitigate Risks of Age Discrimination Claims
It is refreshing to see the Tribunal apply common sense to a situation that was clearly never going to amount to harassment or discrimination. This is not to say that all comments about someone’s age will be acceptable – but, as always, colleagues should be mindful that any comments should be appropriate and in line with normal accepted practices, such as commenting on someone’s birthday in a polite and friendly manner.
Interestingly, the Tribunal also criticised Ms Munro due to the fact that, she could not present a claim for unfair dismissal as she lacked two years’ service, she pleaded that she was actually dismissed due to whistleblowing. The court concluded that she ’artificially attempted to cloak herself with the protection afforded by the whistleblowing legislation’ in ’a deliberate attempt to make her case something that it was not’.
An Employment Tribunal will assess the intention of the person making the comments as well as considering if an individual who the comments are aimed at is unusually sensitive. It is however still important for employers to seek legal advice as to whether comments and/or actions can amount to discrimination in order to mitigate the risks.