Careless Talk Costs Money - Office Banter can lead to a ceiling-less Discrimination Claims
Discrimination is the one aspect of employment law that employers should make every effort to steer clear of. The Equality Act 2010 enshrines a range of protected characteristics relating to discrimination in employment law. Claims made by employees under the Act do not have a financial cap for the awards that can be granted to an individual whose claim has been acknowledged as valid by the Employment Tribunal. Therefore, should the Tribunal so choose, the amount of compensation awarded has the potential to be painfully high and seriously impact on the business.
Statistics from the Ministry of Justice suggest age discrimination claims are the fastest rising complaint, with 3,668 complaints of age discrimination made to employment tribunals in 2020. Other discrimination claims such as disability discrimination coming a close second and sexual orientation following close behind. The largest awards for discrimination run into six figures and should be an issue that employers take seriously.
Daniel Theron, a partner, commented "claims can arise from comments made about a person in the workplace, even if said in jest, they can be regarded as discriminatory and employers and HR professionals should regularly remind their workforce that personal remarks made between colleagues have the potential to have a financially adverse consequence for their employer"
It should not be assumed that a colleague will be a “good sport” when some aspect of their conduct or appearance is commented on, whether or not it is intended to be light-hearted. Mrs. Crompton, who worked for Eden Private Staff, found herself a victim of age discrimination when her manager, Ms. Burridge, subjected her to comments suggesting that she suffered from Alzheimer’s disease and referred to her defective memory. If Mrs. Crompton forgot something Ms. Burridge would say “is it Alzheimer’s again?”
After an interview with two managers who pointed out to Mrs. Crompton that there were errors in outgoing letters she was asked to check her work more carefully. She informed the managers that Ms. Burridge’s “anger and impatience” towards her made her uncomfortable and made it difficult for her to ask for help. Mrs. Crompton’s performance continued to be of concern. She was signed off sick due to stress and was dismissed. Following her dismissal, Mrs. Crompton submitted a grievance letter in which she challenged the reason for her dismissal contesting the suggestion that performance issues were the reason and alleged she had been the victim of age discrimination.
Eden Private Staff appointed an HR consultant to investigate the allegation. During the course of which it came to light that Ms. Burridge had suggested on several occasions that Mrs. Crompton had Alzheimer’s disease. When challenged by the HR consultant Ms. Burridge commented “there was “a bit of a laugh and joke” among colleagues and that another colleague was referred to as “dementia Debbie”, adding that “everyone calls her this”.
The tribunal judge, Judge Matthews, stated that it was doubtful that Ms. Burridge had deliberately intended to violate Mrs. Crompton’s dignity as Ms. Burridge almost certainly saw her remarks as “no more than office banter”. Nevertheless, Ms. Burridge’s views on her own comments did not detract from the effect they had on Mrs. Crompton.
The tribunal found in favour for part of Mrs. Crompton’s claim of direct discrimination, finding that the Alzheimer’s remarks were an act of direct discrimination because they would not have been made to a consultant materially younger than Mrs. Crompton.
Similarly, in another discrimination claim sales manager Mrs. Thompson won a £184,000 award for sex discrimination when her employer refused to allow an adjustment to her hours to enable her to collect her newborn daughter from the nursery despite the fact that previously two other employees had been granted this facility. Furthermore, Mrs. Thompson alleged that she overheard her employer saying to a colleague at a social event “I thought, for f***'s sake, why is she pregnant when we are doing so well? I was warned about employing a married woman of her age.' A statement her employer denied when confronted. Mrs. Thompson resigned and brought a sex discrimination claim against the firm.
The tribunal awarded £184,961.32 as compensation after a panel found that making her work until 6pm - when nurseries ordinarily close - placed her at a 'disadvantage'. However, the comments Mrs. Thompson claimed to overhear were not considered by the tribunal as they were not made directly to her.
The lawyers in Giambrone’s employment law team strongly advise that employers and HR professionals establish a pattern of regular training and reminders for staff to reinforce the importance of professionalism and warn the workforce of the fact that one person’s banter is another person’s bigotry that can have the most serious consequences for a business.
Giambrone & Partners can provide guidance and a training plan for businesses that do not have an in-house HR manager, as well as ongoing advice where a claim has been made or is about to be made.