“In them days”, observed one of Monty Python’s Four Yorkshiremen, “we was glad to have the price of a cup of tea”. “Without milk, or sugar.” “Or tea...” “We were happy in those days, though we were poor.” “Because we were poor!” 
They could have used the phrase “back in our days” without losing the sense. Had this been a workplace setting, their reminiscences ending with “you try and tell you young people of today that, and you won’t believe us…”, would their youthful counterparts have taken offence? And how about if roles were reversed? No scope either way, surely? 
Wait a moment. What about these recent newspaper headlines such as “saying ‘back in your day’ to an older colleague could count as age harassment” – what is that all about? Let’s take a look at Couperthwaite v Hilton Nursing Partners and find out. 
Ms Couperthwaite, a nursing assistant in her 60s, brought complaints of disability discrimination and harassment, age harassment, and wrongful dismissal. Following a four day trial where she represented herself, all of the claims were dismissed. The comment that attracted media attention? Her allegation that a much younger colleague “would also make derogatory comments about my age, such as ‘well, back in your day it was probably free but I would not get it free now’. The subject matter, supposedly, was elective surgery. Let us leave aside the fact that the colleague denied making the comment. Would this have been harassment on the grounds of age? 
Harassment, to be legally actionable, must comprise unwanted conduct relating to a protected characteristic that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Rather than ask a Clapham Omnibus question about the extent to which any such comment would have hurt someone’s feelings, let us see what the Employment Judge made of it. 
Having accepted that the words “back in your day” were related to age, he observed that if the context of the conversation was supportive of the claimant’s case, “we would have been likely to accept that such words would have been unwanted conduct, by being an unwelcome and barbed highlighting of the age difference…” On this occasion, however, to make such a finding would have “cheapened” the italicised words above. In passing, a further comment from the same younger employee about the right for those over 60 to keep their driving licences unconditionally was described as “blanket criticism” of their driving abilities, “potentially offensive” to those close to or over 60, and “thoughtless and inconsiderate” if spoken within their earshot. However, it was evaluated as “letting off steam” rather than contravening the italicised words. 
The decisions of first instance tribunals are only persuasive, not binding, and no two sets of facts are ever going to be the same. However, if this again reflects how the Equality Act is working in mysterious ways, it is all the more incentive for employers to do whatever they can to avoid the risk of claims. The hurtful words may not survive the statutory test in the long term, but news reports of indirect tribunal encouragement such as this may lead more claimants to try their luck in the short term. 
Are you looking to prevent a workplace argument escalating to a grievance, or a grievance to a claim? How about a new set of workplace policies that might nip such problems in the bud? Look no further. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk . 
Share this post:

Leave a comment: 

Our site uses cookies, including for advertising personalisation. For more information, see our cookie policy. Accept cookies and close
Reject cookies Manage settings