Not-so Happy Birthday!

A legal secretary, Miss Munro, this week had her claims for age discrimination heard by the employment tribunal. David Sheppard and Garyn Young comment on the case—a cautionary tale to employers.

To succeed in a claim of age discrimination, a claimant must demonstrate that they have been treated less favourable because of their age. Unlike other protected characteristics under the Equality Act 2010, such as sex, disability and race, direct age discrimination can be justified by an employer if they can establish that the action was a proportionate means of achieving a legitimate aim.

Miss Munro claimed, amongst other things, that she had been discriminated against at work when her colleague, aged 52, asked her about her 50th birthday. Miss Munro recounted being told, ‘It was your 50th wasn’t it, you can’t hide it you know’. Miss Munro wrote to the partner at her firm outlining how her colleague ‘jumped at her like a snake’ which made her feel ‘ambushed, punched, slapped and humiliated’. In accordance with usual practice at the firm, staff also posted a birthday card to her to mark the milestone.

Her specific claim of age discrimination was dismissed by the tribunal, which found that Miss Munro’s “sensitivity about her age appeared unusual and extreme”, and considered that there was no evidence of less favourable treatment. The tribunal also found that the comment regarding her age was “trivial and had not been delivered maliciously” and that the “birthday card was intended for the claimant as an act of kindness”.

This case is perhaps a cautionary tale to employers, and an extreme example that when working relationships breakdown, even apparent acts of kindness can be interpreted and presented by claimants in litigation as acts of discrimination and harassment. It is therefore vital that any complaints of discrimination are investigated thoroughly, given the risk of a subsequent claim regardless of its merit.