A warning over birthday celebrations at work

The employment tribunal has this week heard an age discrimination and whistleblowing complaint of a legal secretary who issued proceedings against her employer who was a Salisbury based law firm.

The employee identified as Ms Munro claimed that she was ‘utterly shocked’ when a colleague who was then aged 52 ‘jumped at her like a snake’ to ask her about her birthday. The colleague is alleged to have said to Miss Munro ‘It was your 50th wasn’t it, you can’t hide it you know’.

Ms Munro then left work early as she was upset by the incident and said that she would not be able to concentrate further that afternoon.

She then sent in a written complaint to the firm two days later stating that she had felt ‘ ambushed, punched, slapped and humiliated’ by the ‘unsolicited’ comments. She further added ‘I come to work to earn money. Even so, I try to be friendly, polite and sociable. However, I’m a private person with a belief that personal matters can remain private and should do so if the individual wishes it’.

The firm also sent Ms Munro a birthday card in the post in line with its practice to mark staff birthdays.

In addition, the firm also had concerns about Ms Munro’s poor performance which manifested itself a month later with consideration being given to implementing a disciplinary process or mutually agreeing a departure.

Ms Munro then issued proceedings in the employment tribunal claiming that she had suffered discrimination on the grounds of her age and that she had blown the whistle on a breach of data protection.

The employment tribunal held that Ms Munro’s sensitivity about her age appeared unusual and extreme and found that there was not sufficient evidence to show that other members of staff who were over the age of 50 would have been treated differently. It also found that the comment made by the colleague was ‘trivial and had not been delivered maliciously’ and that the sending of the birthday card was an act of kindness.

She also lost her whistleblowing claim as the employment tribunal stated ‘We concluded that the Claimant was wrong to have artificially attempted to cloak herself with the protection afforded by the whistleblowing legislation by making disclosures which had not been in the public interest.’

Unusually the employment tribunal also made a costs award against Ms Munro to pay the firm’s £1,700 legal costs.

Although the Claimant lost her case, employers need to be aware that they can become the subject of legal proceedings over the most trivial of matters. It is therefore important for employers to have an equal opportunities and anti-discriminatory policies in place, combined with internal training to educate staff as to what is and is not acceptable conduct in the workplace. Although employers cannot prevent an employee from suing them, they can ensure that they take sufficient measures to combat such legal challenges to ensure that they are confident of defending such complaints.

On balance I think that the decision arrived at by the employment tribunal was the right one, and it is a pity that the employer had to endure the time and expense of defending its position even though it was fortunate enough to have recovered its legal costs. The decision is also only a first instance decision and is not persuasive but nonetheless will be of interest to many employers.

If you have any questions or concerns about discrimination in the workplace or as a business would like to implement clear, concise up to date policies and procedures then contact Steven Eckett – Partner and Head of Employment at Meaby & Co. He can be contacted on 020 7703 5034 or by e-mail seckett@meaby.co.uk