In July 2023, 25-year-old Keir Mather, was elected as Labour MP for Selby & Ainsty and became the youngest member in the House of Commons. The fact that Keir Mather is the youngest MP has prompted the use of terms of baby faced and an inbetweener.
These are headlines that remind us of age discrimination, and age discrimination is described as being one of the most common forms of unfair treatment at work. This is not surprising considering that the age gap of employees at work can be 50 years or more.
We often think of older workers when we consider the protected characteristic of age, but the Equality Act provides the legislation for all workers and there are numerous real-life examples which demonstrate the risks of inappropriate language related to age submitted at Employment Tribunals.
James v Gina Shoes heard in 2012 reminds of the dangers of the use of inappropriate age-related language towards an older employee. This was a case of constructive dismissal related to age discrimination where a 58-year-old employee resigned after his employer made it clear that it was not happy with his performance. The employer commented that it might be the employees age that meant he was not able to meet the required standards of performance and it might be possible to train James if he were younger. There were further comments about his age, to the effect that ‘you can’t teach an old dog new tricks’.
The case Roberts v Cash Zone heard in 2013 related to an 18-year-old employee. In this case, the employer was not tolerant of the employee’s shortcomings and referred to her as “a kid”, “stroppy kid” and “stroppy little teenager”. In this case, the Employment Tribunal held that the language used constituted harassment on grounds of age and the employee was awarded compensation for injury to feelings.
Unnecessary jargon or inappropriate language is not helpful to anyone of any age. A younger employee calling an older colleague ‘Gramps’ or ‘old timer’ or an older employee telling a young employee they are ‘still wet behind the ears’ and patronising behaviour and comments about ‘kids’ or ‘millennials’ should be as firmly out of the picture as with any other types of workplace ‘banter’.
The term ‘banter’ is often used when there is disparity between what was intended by one person and how it has been perceived by another. However, in discrimination it is how the recipient perceives words and actions matters more than the intention of the person delivering them and so ‘banter’ can be dangerous!
At advo, we discuss with employers how they should manage these situations and would always recommend that care should be taken. Where a discriminatory ‘joke’, ‘banter’ or remark has caused offence or upset, it may be appropriate that the manager has an informal discussion with an employee and explaining that they have caused offence, and to make sure they do not do it again. In this sort of a situation, we would always suggest that this conversation is recorded in writing and may recommend that both parties come together, and an apology made.
However, in other situations, where it is alleged that a term has been used on purpose and maliciously, or to embarrass and humiliate, we would recommend that the employer investigates the matter formally.
In order to minimise and mitigate the risk of any form of age discrimination, advo would recommend that employers lead by example, train all employees and are able to show that any inappropriate comments or ‘banter’ is not acceptable. This would include encouraging managers and employees to call others out if they hear inappropriate comments.
If you require advice relating to any employee matters, please contact the HR team at advo and we would always be happy to assist you.