The case of Ms Carolina Gomes v. Henworth Limited t/a Winkworth Estate Agents & anor. serves as a useful reminder to be careful when selecting your choice of words when talking to employees.
Ms Gomes started working for an estate agency business in 2009. In 2015 she was transferred to another franchise as an administrative assistant. In 2016 there were concerns with her work and meetings were held during which she was told to be more careful. She was aged 59 at the time she was told that she would be “better suited to a traditional estate agency”. Ms Gomes took this to mean that she was being told that she was too old to work in that office. She also felt that she was being told to leave the business. She had intended to stay with the company until she retired at 65.
Ms Gomes was not satisfied with the outcome of a grievance that she raised. She appealed and also tendered her resignation and brought an age discrimination claim at Employment Tribunal. Her claim of direct age discrimination was concluded to be well-founded, as were the claims for harassment related to age and constructive unfair dismissal. The Tribunal was satisfied that the reason for her resignation was the treatment she received. The Tribunal held the phrase “better suited to a traditional estate agency” was a reference to her age and it was unlikely that such a comment would have been made to a younger employee. Their comments and actions had the effect of violating Ms Gomes’ dignity and amounted to harassment relating to her age.
The Tribunal also found that their references to things “not working out” and for her to “sleep on it” conveyed the message that they did not want her to continue working for them. It was reasonable for her to take the view that there was a fundamental breach of the implied term of mutual trust and confidence that entitled her to resign.
Peter Stanway, our BackupHR™ legal expert comments:
This case serves as a reminder to employers of the risks of using words and phrases that could be taken to be a reference to someone’s age. Each case will of course be decided on its own facts, and this case was only at Employment Tribunal level, so is not binding on any other Tribunal, but it does show how serious the consequences of using phrases that clearly infer an intention such as in this case – we want you to leave. Claims for discrimination and harassment can also succeed on the basis of one-off statements which allude to an employee’s protected characteristic(s) e.g. age or gender, without directly referring to it.
Actions:
- It is essential have good equal opportunities and dignity at work policies in place which prohibit discrimination in all aspects of the business.
- You also need to ensure that everyone is fully aware of the policies and the importance of abiding by them.
- Training management, employees and even workers in these policies, is key to ensuring that people not only understand but actually comply with the stated requirements.
- Adequate steps need to be taken as a result of any breaches and remedial training provided to staff as is reasonably necessary.
- Taking all reasonably practicable steps to prevent discrimination from taking place, including training, will provide an employer with a good first line of defence to Tribunal claims.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
