One curious feature of Andrea Petroi’s tribunal claim against the Soho Sandwich Company, generating a newspaper headline about the age derived insult, is that she never heard it face to face. A colleague had said “she is like my grandmother” in an investigation meeting where she was not present. He later sung a song in Bengali at her in which – thanks to another helpful colleague’s translation – the term appeared again. Could this have really justified a £22,000 award for unfair dismissal linked to age discrimination and a further award of £11,000 for injured feelings for age related harassment?
Dig deeper, and it will soon become apparent that the age discrimination claim had more to it. A comment: “tell Adriana to leave them alone. They are young, mate…” A statement: “she is so old, she gets angry”. And questions in an investigation meeting: “what is important for you at this age, in life? Because they are young, they need to learn, but for you, what is most important?” Not forgetting an exit interview comment: “I did not think you need motivation. I always thought younger people need to be motivated, rewarded.”
Having determined those comments to be potentially discriminatory, the tribunal went on to decide whether they were a proportionate means of achieving a legitimate aim. Evidently not. To ignore complaints about younger people’s behaviour, and to provide more opportunity for reward to younger people, was not consistent with promoting a balanced workforce; “it is an action likely to achieve just the opposite.”
In the context of harassment, the tribunal accepted that the “grandmother” comments (both the English and the Bengali) were unwanted age related conduct which had the effect of humiliating Ms Petroi. The “leave them alone” and “she gets angry” comments met the same fate.
Taking a step back for an overall impression of the judgment, which also embraced constructive dismissal, unlawful wage deductions, and underpaid holiday pay, it is difficult to avoid concluding that the employer’s prevailing attitude towards Ms Petroi was to look upon her as a nuisance. Had it treated her grievances and complaints seriously, without giving the impression that an older employee was less deserving of motivation and respect than her younger colleagues, it might have saved itself a 5 day hearing and an adverse award just above £60,000 when interest and ancillary elements were taken into account. Prompt external legal advice might, for instance, have led to a recommendation that the singing colleague should receive a written warning and be told to watch his step.
Do you have a claim for constructive dismissal and discrimination brewing? It may be worth a fresh pair of eyes before it escalates. Get in touch. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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