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Employment Solicitor on a surprising Age Discrimination decision

Don't let the Joke be on you! In light of a surprising decision on Age Discrimination, an Employment Solicitor reflects on Harassment at work.......

According to the Daily Telegraph this week, an Employment Tribunal has found that Dawn Bailey, a 52 year-old personal assistant, who suffered from chronic illness and depression, had been unfairly dismissed by Lockheed Martin, one of the world's largest defence firms. She brought a claim for constructive Unfair Dismissal (after she could no longer bear to attend work in the face of the lack of support provided by her employer) together with a claim alleging Age Discrimination.

What is notable is that it is reported that the Tribunal failed to find that there had been unlawful Age Discrimination. This is despite comments that "it was time for a younger team" and that they were "looking for a younger model". At first blush, this appears to be more blatant direct age discrimination. The Tribunal found instead on the facts that the comments were made in jest and were not intended to harm. However, the definition of Harassment (under equality legislation) is that it need not be intended to offend, if in fact, it has had the effect of violating a person's dignity or creating an offensive, intimidating or hostile environment. On that basis, it is perhaps unsurprising, in my view, that the PA and her solicitor are contemplating an appeal.  

However, is this case indicative of societal tolerance to ageism and ageist remarks in the workplace. Shouldn't we be subscribing to the view that age discrimination is no joke?

Without going into the detailed facts of this case, I ask the question whether this could be indicative of a general acceptance of age discrimination? I would like to think that we now live in a society where most people are aware of the implications of sexually harassing a colleague or making racist statements at work. However, many would send a birthday card saying “you can't teach an old dog new tricks” without thinking twice? Are such messages sinister or perfectly acceptable jokes? The Equality Act 2010 protects employees and workers from being directly or indirectly discriminated against, as well as from harassment, on the grounds of age.  

Whilst I am not trying to suggest that any of us should lose our sense of humour in the workplace, which let's face it, we all need, however surely there needs to be some awareness that where these types of comments are commonplace, that they could be unwelcome and lead to colleagues feeling harassed. As at November 2012, over 7.5 million of the UK's workforce was in the 50 to 64 year age bracket. These are not insignificant numbers.   

There have been other high profile cases reported in the media, for example, that of former Country file presenter, Miriam O'Reilly, who won her age discrimination claim against the BBC in January 2011. Despite this win, and others, we need to continue to raise awareness of this form of Discrimination and harassment to ensure that it, like our age, doesn't creep up on us.

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