Age harassment

Pontius Pilate comment did constitute harassment on the grounds of age

Pontius Pilate is known as the official who presided over the trial of Jesus and ultimately ordered his crucifixion. The East London Employment Tribunal has now handed down its decision in the case of Finch v Clegg Gifford & Co Ltd and another recognising that the Managing Director’s reference to the Governor of the Roman Province of Judaea was objectively capable of being offensive, concluding that it could be inferred that the reference was because of the Claimant’s age thus, constituting to age harassment.

Background

The Claimant, Mr Finch was employed as a credit controller, having been transferred from another company with whom he had worked for a long time. He had a raft of long-standing health issues including diabetes and anaemia and was subjected to a number of derogatory comments by the Managing Director.  Specifically, Mr Finch was asked in front of colleagues if he was “planning on a nap this afternoon” having previously fallen asleep in the office, which Mr Finch had explained was a side effect of his medication that made him drowsy.

During Covid, Mr Finch was asked to consider bringing forward his holiday where he might not be around in September or October.

Following a period of furlough, the workforce was sent a survey to complete to gauge their views on returning to the workplace. Mr Finch expressed some concern about future use of public transport and was informed that he would be made redundant and an offer of settlement was made.

Mr Finch queried the calculation of the settlement offer to which the Managing Director responded, “You have received the maximum amount of statutory redundancy pay and we know that you have been around since Pontius was a Pilate.” It was this response which constituted age harassment as the Claimant was 66 years of age at the time.

Having reflected on his position, Mr Finch sought legal advice and sent a letter before action to his employer. The employer withdrew the settlement offer and requested that Mr Finch return to the office.  

Mr Finch resigned and issued claims for constructive unfair dismissal, victimisation, and age harassment.

The Tribunal upheld the claims, finding that the Managing Director’s comments in relation to a planned nap were “crass” and something which should have been addressed in a closed meeting or by reference to occupational health. Similarly, they found the comment relating to Mr Finch’s holidays also related to his protected characteristics and constituted an act of harassment. The Tribunal unanimously dismissed the Managing Director’s suggestion that his reference to Pontius Pilate was nothing more than a throwaway comment made to ‘lighten the tone’ and found this to be harassment on the grounds of age.  

Comment

Sadly, all too often we see Respondents trying to defend derogatory comments as little more than light-hearted banter. Harassment is defined as, “unwanted conduct which has the purpose or effect of violating a person’s dignity or of creating an intimidating, hostile, degrading, humiliating, or offensive environment for a person.”  This entails consideration of both subjective factors, such as the Claimant’s perception but also objective factors such as whether it was reasonable for the conduct to have that effect in all the circumstances of the case. It is perhaps therefore not surprising that the Tribunal, in this case, found in favour of the Claimant where the comments were clearly capable of causing upset and offence.

This blog was written by Kate Lea, Senior Solicitor for didlaw