Older Employees Can Take A Joke But More Fool You If You Think You Can’t Teach An Old Dog New Tricks (Guest Blog)

Stephen Mutch, Employment Associate at Manchester Solicitors Pannone LLP reflects on the importance of understanding that to eliminate age barriers and comply with European law it is necessary to for employers and HR professionals to provide training opportunities for staff regardless of age.

When the age discrimination legislation, which implemented the EU’s Equal Treatment Directive of November 2000, was first introduced in the UK back in 2006, a large number of claims were expected based on ageist comments being made in the workplace. This was based in part upon a concern that age related comments simply did not have the same taboo as those based around gender or race and as such were more likely to occur. Jokes based on age were (and still are) regularly seen on TV and in greetings cards and were heard around the workplace - Bob's first car was a T-model Ford is one that sticks in my mind.

However, a deluge of age-based claims simply didn't happen and hardly any reported decisions based around hurtful ageist comments were seen, with most claims under the age discrimination legislation dealing with the application of benefits based on length of service. This is also true of cases brought in the EU, few in number and mostly brought regarding dismissal or provision of pensions. Perhaps people are less ageist than we gave them credit for, or perhaps the comments are out there but the recipients accept them as within the course of normal office banter.

Not so for Mr James, claimant in the recent case heard before the UK Employment Appeals Tribunal (EAT) James v Gina Shoes who challenged the position he found himself in.

During the course of being disciplined for poor performance Mr James was told by his manager that if he was younger he could be trained up (he was in his early sixties) but you 'can't teach an old dog new tricks'.

Unsurprisingly, the EAT held that such comments created an indication of an inclination to discriminate on grounds of age. The Tribunal consequently found that age discrimination had taken place that led to Mr James' subsequent resignation, and that the employer was required to prove it had not discriminated against him.

Under the EU Directive it is likely that a claim brought on grounds similar to those of Mr. James would have the same result across Europe, as Article 2(a) states that ‘direct discrimination shall be taken to occur where one person is treated less favourably than another’ for reason of their age. The refusal to provide training to an older member of staff would certainly prove to be such treatment.

Despite their being relatively few age discriminations cases brought in the EU as labour markets become tighter, it is possible that more employers will begin to argue that the dismissal of older workers is justifiable on the grounds of opening up opportunities for the employment of younger workers. However, as the EU Directive shows and the decision in James v Gina Shoes employers will have to make a strong case that can in no way be based on a person’s age.

The case of James v Gina Shoes is a timely reminder that 'off the cuff' comments touching upon the age of colleagues can land an employer and HR professionals in hot water and that any equal opportunities training can usefully include a refresher on age-related comments. Furthermore, the case highlights how unacceptable age related barriers in employment are; a job that involves regular training is not one that older people are excluded from or one that they won’t thrive at doing.

Stephen Mutch is an Employment Associate at Manchester Solicitors Pannone LLP.