Age discrimination claim succeeds due to a flippant comment

A tribunal has ruled that a woman who was told she might be “better suited to a traditional estate agency” was discriminated against because of her age.

Ms Gomes, who was 59 had continuous service with the company since February 2009.

In February 2016, the company’s lettings director had a meeting with Gomes to discuss her work.

During this chat, he told her she needed to be more careful.

This upset Ms Gomes so she spoke to her line manager who, in turn, spoke to Graham Gold, one of the directors.

Following this, Gold made an observation regarding Ms Gomes that she was too intent on using an old piece of software that was now rarely used by the company, and had not been paying enough attention to new methods of working, although this observation was not shared with Ms Gomes.

In March 2016, Gold asked Gomes to meet with him and told her:

“This marriage isn’t working.”

When she asked what this meant, Gold addressed some errors in documentation that Gomes had produced and he advised that a note would be placed on her performance record.

Gold then said she would be “better suited to a traditional estate agency”.

Gomes took offence to this statement, thinking he meant she was too old to work there.

When she asked him to explain what he meant, he told her to “sleep on it and decide what you want to do”, which Gomes took to mean he thought she should resign.

At the time, she had intended to stay with the company until she retired at 65.

Shortly after, Gomes took sick leave for work-related stress.

She also raised a grievance against Gold.

Although the outcome of that grievance meeting concluded that Gomes should be supported with more training and that the original meeting with Gold should not have been carried out in the manner that it was, Gomes was not satisfied.

She not only appealed but also tendered her resignation.

The tribunal concluded that Gomes had been discriminated against on the grounds of her age as the phrase ‘better suited to a traditional estate agency’ was defined in the Oxford English Dictionary as ‘long established’ and it was unlikely that such a comment would have been made to a younger employee.

The tribunal also allowed the claims for harassment related to age and constructive unfair dismissal.

This case is a stark reminder that flippant comments that can somehow be related to age are dangerous, even if the comments do not directly refer to age.