The cost of ‘banter’ in the workplace

In a recent Employment Tribunal Case, Evans Halshaw have been found guilty of Age Discrimination. 

The case involved a member of staff who had been subject to a number of age related pranks by his colleagues, namely;

• Nicknamed ‘Yoda’ in reference to a centuries old wizard from Star Wars who walks with a walking stick.
• Changing his car registration number from OAB to OAP-  Being referred to as ‘my 104 year old service team leader.’
• Being asked before he had even turned 65 by his Dealer Principal when he would be retiring.
•  Being reminded on a regular basis that he was now of retirement age. 
• Being asked to swap his job with a younger member of staff to a lower, less senior position. 
• Such behaviour was condoned by the Dealer Principle, who openly admitted in Tribunal that he ‘could see no problem with age related banter if everyone is getting on’. 

The Employee was subsequently made redundant, from a pool that consisted of only him. The Employee claimed this to be unfair dismissal under S98 of the Employment Rights Act 1996 and Age Discrimination under Section 5 and 13 of the Equality act 2010. 

The Claimant asserted that plans had been made from September 2011 for a lower level member of staff to begin training to take over the Claimants role, upon reaching 65 In January 2013. The Respondent had, without consultation with the Claimant, looked in their personnel file to discover when they had turned 65. The member of staff in line to replace the Claimant ( a Mr Brooks) was due to leave the company in September 2011, however the Respondent had convinced them to remain in employment, in order to replacement the Claimant. Mr Brooks had intended to leave the Respondents employment because he sought promotion to the level the Claimant was worked at, however his continuation in his current position further indicated that he was of the belief he would be taking over the Claimant’s role. 

The Respondent then, asked the Claimant on a number of occasions if he wished to swap roles with Mr Brooks, who was still in the lower level position and had now trained on all elements of the Claimants job, as planned by the Respondent. The Claimant refused to swap roles as this would infer a demotion to a lower level position. 

The Respondent claimed that the Claimant was made redundant on the basis that the department that the Claimant worked in, had been restructured. Part of the restructure meant the Claimants position was no longer required. They argued that as Mr Brooks undertook a different role, his position was not to be considered in the Redundancy pool. Therefore the Claimant would only be a pool of one. The Claimant claimed this to be unfair, which the Tribunal agreed with. They found that the Respondent was reluctant to bump the Claimant into Mr Brooks position as the Respondent was keen to remove the Claimant from their employment. It would have been prudent and more cost effective to place the Claimant in Mr Brooks position as suitable alternative employment, and make Mr Brooks redundant as his redundancy pay would have been considerably less. 

Further at the other sites that the Respondent owned they had undertaken the same restructure and both positions were made redundant and both applicants were to apply for the sole position which remained. This was not applied to the Claimants site, which the Tribunal found to be further evidence that the Claimant had been singled out. It was therefore clear to the Tribunal that Mr Brooks had been kept on to take over from the Claimant anticipating that he would retire in January 2013. When the Claimant did not express any such intention, the Respondents actions to make him redundant instead were deemed to be age discrimination. 
Interestingly in the Tribunals conclusions, they had deemed that the was a genuine redundancy situation, as the need for the Claimants position had diminished and as such this was a fair reason for dismissal. However they found issue with the selection process that the Respondent had acted unreasonably, by failing to provide evidence to verify why Mr Brooks services needed to be retained over that of the Claimants. Further the Respondent had failed to act reasonably by not including Mr Brooks in the selection pool as they had previously intended to swap the roles of the Claimant and Mr Brooks and as such it would be expected that they both be placed in the selection pool. 

It is therefore a word of warning to Employers that they can not use redundancy as an alternative to retirement without due consideration and verification that other candidates are required to remain in employment, other than they are younger. Without such evidence, a Tribunal will infer that the reasons were redundancy were in fact discriminatory.