When discussing unsatisfactory performance, did an employer who told an employee she would be “better suited to a traditional estate agency” discriminate because of age?
Gomes v Henworth Limited t/a Winkworth Estate Agents
Ms Gomes had worked for Winkworth Estate Agents as an Administrative Assistant since 2009. In February 2015, she was transferred to another of the company’s branches.
The lettings director was becoming increasingly worried about repeated errors in Ms Gomes’ work and organised a meeting with her to discuss this in February 2016. Following the meeting, Ms Gomes became upset and spoke to her line manager who, in turn, spoke to one of the shareholders – Mr Gold. Mr Gold suggested a further meeting to resolve any issues. At this meeting, apologies were made to Ms Gomes for upsetting her. In the notes of this meeting it was recorded that Ms Gomes was focussed on old software and was not paying attention to a new way of working, which the company had implemented. These performance issues were never discussed with Ms Gomes.
On 3 March 2016, Mr Gold arrived at the branch where Ms Gomes worked and asked to speak to her in a private room with no prior warning. Mr Gold waved a letter at Ms Gomes claiming “this marriage isn’t working”. He then went on to explain a number of errors that were in the letter and that a note would be placed on her performance record. Ms Gomes explained that the errors were produced by the computer because incorrect information had been put on the files, the letter was created under extreme time pressures and that blame could not be placed solely on her as her line manager had checked it. Mr Gold responded that perhaps Ms Gomes would be “better suited to a traditional estate agency” and that she should “sleep on it and decide what you want to do”. Ms Gomes took these statements to mean that Mr Gold considered her to be too old to continue working at Winkworth’s offices and that he was telling her to leave the business. Mr Gold offered no explanation for his statements.
Shortly after, Ms Gomes took sick leave for work-related stress and raised a grievance against Mr Gold. The grievance meeting was held outside of the office but Mr Gold was present. The outcome of the meeting concluded that the original meeting with Mr Gold should not have been carried out in the way that it was and that Ms Gomes should be supported with more training. Ms Gomes appealed this decision claiming that her initial grievance had not been dealt with seriously and that it was inappropriate for Mr Gold to have participated in the meeting as the grievance was about him. Ms Gomes handed her resignation in at the same time.
Ms Gomes brought claims for age discrimination, harassment and constructive unfair dismissal.
The Employment Tribunal allowed all of Ms Gomes’ claims. In relation to the claim for age discrimination, the tribunal concluded that the phrase ‘better suited to a traditional estate agency’ was a direct reference to her age and that it was unlikely that such a comment would have been made to a younger employee. Furthermore, Mr Gold’s actions and comments had the effect of violating Ms Gomes’ dignity and amounted to harassment relating to her age.
The ET also found that the references to things “not working out” and for Ms Gomes to “sleep on it” conveyed the message that they did not want her to continue working for them and that it was reasonable for Ms Gomes to take the view that there was a fundamental breach of the implied term of mutual trust and confidence that entitled her to resign. The ET commented on the way the grievance was dealt with, finding that the person put in charge of handling the grievance meeting compromised their impartiality, in particular because they allowed Mr Gold to be present, despite him being the subject of the complaint.
This case serves as a warning for employers that claims for discrimination, including harassment can succeed on the basis of one-off statements which allude to an employee’s protected characteristic e.g. age, without directly referring to it.
It isn’t sufficient for employers to have robust equal opportunities policies in place which prohibit discrimination in all aspects of the business including training and development. Employers also need to ensure that staff are aware of the policy, adequate steps are taken as a result of any breaches and training provided to staff as is reasonably necessary, including those involved in recruitment decisions. Whilst it isn’t likely to have been relevant in the case above, as it involved comments by a shareholder, taking all reasonably practicable steps to prevent discrimination from taking place will provide an employer with a defence to claims brought on the back of any actions by an employee.
The case is also a reminder that grievances should be dealt with impartially by managers who aren’t the subject of the grievance.
If you have any queries relating to age discrimination or any other employment law/HR issues, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.