Guest Blog by Stephen Mutch, Employment Associate, Pannone LLP
Older Employees can take a joke but more fool you if you think you can’t teach an old dog new tricks
When the age discrimination legislation was first introduced back in 2006, a large number of claims were expected based on ageist comments being made in the workplace. This was based in part upon a concern that age related comments simply did not have the same taboo as those based around gender or race and, as such, were more likely to occur. Jokes based on age were (and still are) regularly seen on TV and in greetings cards etc and were heard around the workplace – Bob’s first car was a T-model Ford is one that sticks in my mind.
However, a deluge of age-based claims simply didn’t happen and hardly any reported decisions based around hurtful ageist comments were seen, with most claims under the age discrimination legislation dealing with the application of benefits based on length of service. Perhaps people are less ageist than we gave them credit for, or perhaps the comments are out there but the recipients accept them as within the course of normal office banter.
Not so for Mr James, claimant in the recent case heard before the Employment Appeals Tribunal (EAT) James v Gina Shoes who, rightly, challenged the position he found himself in.
During the course of being disciplined for poor performance Mr James was told by his manager that if he was younger he could be trained up (he was in his early sixties) but you ‘can’t teach an old dog new tricks’.
Unsurprisingly, the EAT held that such comments created an indication of an inclination to discriminate on grounds of age, and consequently found that age discrimination had taken place that led to Mr James’ subsequent resignation, and that the employer was required to prove it had not discriminated against him.
The case is a timely reminder that ‘off the cuff’ comments touching upon the age of colleagues can land an employer in hot water and that any equal opportunities training can usefully include a refresher on age-related comments. For older employees and jobseekers it also shows that a job that involves regular training is not one they are excluded from or one that they won’t thrive at doing. As inmyprime wrote in a previous post, with people expected to work for longer, training for older employees is increasingly reported, a fact highlighted by the BBC two programme ‘The town that never retired’.