LEGAL UPDATE: Does being told to "grow up" at work constitute age discrimination?
Apparently not, accordingly to the Employment Tribunal in the recent case of Stunell v Leo Bancroft Salon Ltd.
Background
Miss Stunell was an Apprentice at a boutique hair salon, Leo Bancroft. Having worked weekends at the salon from the age of 16, she was awarded an Apprenticeship in 2018.
The case contained a number of claims, but this specific allegation of age discrimination involved a colleague allegedly advising Miss Stunell, during a bout of sickness, to “grow up” and “pull herself together”.
The comment was denied, but Miss Stunell, amongst bringing other claims, alleged it did happen and that it comprised an act of age discrimination.
The law
The allegation was pleaded as a direct discrimination complaint contrary to s.13 of the Equality Act 2010. Direct discrimination occurs when:
A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
In order to establish the claim, a claimant must show that they have been treated less favourably than another person (known as a comparator), whose circumstances are materially the same, except for the protected characteristic – and the reason for the treatment is the protected characteristic.
So it requires:
less favourable treatment;
by comparison to someone in materially the same circumstances; and
the reason for that less favourable treatment to be the protected characteristic (in this case age).
Put another way, in this case, the relevant questions were:
did the comments constitute less favourable treatment?
would they have been made to another employee in materially the same circumstances, but of a different age?
was the reason for the comments Miss Stunell’s age?
Judgment
The Tribunal found that the words “grow up” and “pull yourself together” in themselves are not related to age.
Indeed, it held they can be said to anyone and particularly to someone older who is acting in a childish way.
An interesting take – as at first blush telling someone to “grow up” does appear to relate to age. However, the critical distinction is that the comment relates to the age a person is acting, rather their actual age – so really it relates to behaviour rather than age.
Given the Tribunal found that the reason for the comments was not Miss Stunell’s age, a key element of direct discrimination was not met - the claim, therefore, failed.
Such comments are clearly not advisable in the workplace, but the case serves as an interesting reminder of the fine line between conduct that is simply not professional and that which is unlawful.
For more information, do contact: john.skelly@bakerskelly.com
The above is intended as general commentary only and is not intended as a substitute for specific legal advice.
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