So is it age discrimination to called a teenage employee a “teenager”? All a question of context, the Employment Tribunal decided in Roberts –v- Cash Zone (Camberley) Limited last month, a ruling which also sheds some side-light on the use of other potentially discriminatory terms in the workplace.
Ms Roberts was 18 when dismissed by her employer following her continued failure to grasp and/or follow certain important internal procedures at Cash Zone. As part of its efforts to drum those procedures into her, CZ management met with her from time to time and left written notes/instructions in relation to things which had gone wrong the previous week. It was admitted that in those meetings and notes about her poor performance, Ms Roberts had been described as a “kid”, a “stroppy kid”, and “a stroppy little teenager”. Notwithstanding the Tribunal’s ultimate acceptance that she was indeed (a) stroppy; (b) little; and (c) a teenager, Ms Roberts alleged this to be harassment on grounds of her age.
The Employment Tribunal took a deep breath and began. “It may at first glance seem counter-intuitive to award compensation to a claimant whose complaint is that she was called a teenager at a time when she was in fact ….. in her teenage years”. However, it went on to conclude that “teenager”, like other age-related terms such as “middle-aged”, could have both a factual meaning and a judgemental one. “In England, some teenagers have the right to vote” is a fact, the Tribunal said, but “My employee is 25 but acts like a teenager” is a subjective value judgement, clearly pejorative and based on stereotypical behaviours.
Here it was found that the words were used in the latter sense, to criticise Ms Roberts for behaviours (not listening, not tidying up) which CZ associated with the status of teenager, and that they were therefore discriminatory. “We have regard to the need to strike the right balance between not fostering a culture of hyper-sensitivity on the one hand and not appearing to gloss over unacceptable uses of language on the other”, said the Tribunal, concluding that a £2,000 award for injury to feelings was appropriate. £2,000? For calling a teenager a teenager? The Tribunal noted by way of explanation that the remarks were not a casual one-off conversation with a colleague in the workplace, but a continuing series of deliberately critical comments made by managers in the execution of managerial responsibilities relating to Ms Roberts’ performance. The award may usefully be compared with that made in the same case for an act of harassment on grounds of sexual orientation – this one was a one-off, was part of a casual conversation and was apologised for as soon as the causing of offence was recognised. The award there was £750, right at the bottom end of the scale.
The lesson for employers is that you do not need to be blind to the Equality Act protected characteristics within your workforce – these are facts – but you do need to avoid using even factually incontrovertible descriptions of them (by age, gender, race, etc.) as a stereotypical negative. Readers with teenage children will however no doubt understand why the Employment Tribunal pointedly declined to say that the “stroppy” stereotype had no foundation in fact. To readers who are teenagers, then (a) I apologise; and (b) wait until you have your own.
