In the case of Ms M C v Hilton Nursing Partners Limited nursing assistant Ms MC – who is in her 60s – filed a claim of age harassment, alleging a younger colleague suggested an operation had been free on the NHS ‘back in your day’.
Although her claim was dismissed, as the tribunal found the comment was never made, it was concluded that the ‘barbed and unwelcome’ expression highlighted the age gap between two people and may amount to ‘unwanted conduct’.
In October 2021, her colleague – who the panel heard was ‘a lot younger’ than Ms MC – made two comments about her age.
Explaining how she was left ‘offended’, she said: ‘K would also make derogatory comments about my age, such as ‘well back in your day it probably was free, but I would not get it free now*’
‘I contend that the comment amounts to harassment on the grounds of age.’
Despite no date being given for the remark or any wider context, Ms MC told the hearing it had been during discussion about ‘some elective surgery’.
Dismissing all of her claims, Employment Judge Patrick Quill said: ‘For the alleged ‘back in your day’ comment, if those four words were said at all, then we do not have details of the specific context in which they were said, and we do not have details of the date when it was allegedly said.
‘If any remark similar to ‘back in your day’ was ever made, we are not satisfied that [Ms MC] was significantly offended by it.
‘She is unable now to recall the specific details, and there was no complaint about the alleged comment until after she had been dismissed for wholly unrelated reasons.’
However, he ruled the panel would have been ‘likely to accept’ they would have been unwanted conduct, had they been said.
‘We would accept that the words ‘back in your day’ are related to age,’ he continued.
‘Depending on context, the implication might be ‘at the time that you were the same age that I am now, which was a significant period of time ago’.
‘For similar reasons, and subject to being satisfied about the context of the conversation, we would have been likely to accept that such words would have been unwanted conduct, by being an unwelcome and barbed highlighting of the age difference between K and the complainant.
‘However, it would be cheapening the words of [the Equality Act] to conclude that K’s purpose would have been to have the effect described there, or, alternatively, that it would be reasonable for the tribunal to treat those words as having such an effect.’
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