Is it appropriate to ask a colleague their age?

A legal secretary has had her claim for age discrimination dismissed by an employment tribunal. Miss Munro, of a legal practice in Salisbury, complained that she was utterly shocked when a colleague approached her and asked about her birthday. The colleague had discovered that Miss Munro was 50.

Harassment on the grounds of age

Her claim centred upon the allegation that she had suffered harassment on grounds of her age. Harassment is a form of discrimination and she would have to prove that the treatment she received was hostile, intimidating, degrading, humiliating or offensive and that it was on grounds of age and affected her dignity at work. This is the language used in the legislation. Harassment claims can also be brought on other grounds and these are called protected characteristics. They include age, sex, race, pregnancy and disability and there are nine such characteristics in total.

Age sensitive

The firm defended her claim and the matter reached the employment tribunal at which her claim was ultimately dismissed. The firm argued that she was treated no differently from any other person receiving a birthday card from colleagues and that she was overly sensitive and her reaction was disproportionate. The tribunal judge agreed and her claim was rejected.

To add insult to injury, she was also ordered to pay costs which is unusual in tribunal proceedings as costs are only normally awarded where a party is found to have conducted themselves unreasonably or vexatiously. This could mean for example that she was made an offer to settle and refused and was therefore put on notice that a costs order might be made. The firm also argued that it was due to commence disciplinary proceedings against her due to her poor performance.

Office banter could lead to discrimination claims

Whilst her claim was rejected, employers should be wary of condoning or allowing banter in the office around age or indeed any other protected characteristic. Age discrimination claims based upon harassment are extremely rare but cases have been successful where nicknames have been used which allude to an older person’s age or seniority. The law does apply to both ends of the age spectrum so that young employees are also subject to the same protection.

Do you feel you have been discriminated against because of your age? Try our age discrimination calculator for an immediate calculation of an award that an Employment Tribunal may make.

You can call specialist employment solicitor on 0113 320 5000 or email employment@winstonsolicitors.co.uk if you wish to discuss age discrimination or any other employment law issue you may be experiencing.