Judge determines the comments were unlikely to be made to a younger employee

A woman who was told she might be “better suited to a traditional estate agency” was discriminated against because of her age, a tribunal has ruled.

Watford Employment Tribunal heard that Ms Gomes, who was 59 when the comment was made, started working for Henworth, which traded as Winkworth Estate Agents, in February 2015 as an administrative assistant. She had worked for another agent in the Winkworth franchise since February 2009 before being transferred.

In February 2016, the company’s lettings director had a meeting with Gomes to discuss her work, in which he told her she needed to be more careful. This upset Gomes so she spoke to her line manager who, in turn, spoke to Graham Gold, one of the directors.

Following this, there was a meeting between Gomes and a number of other staff. Although he did not share his notes with Gomes, Gold noted that she was too focused on an old piece of software that was now rarely used by the company, and had not been paying enough attention to new methods of working that had been shared with her shortly after she joined.

In March 2016, Gold asked Gomes to meet with him and told her: “This marriage isn’t working.” When she asked what this meant, Gold mentioned a letter had been typed and sent to a solicitor with errors, including referring to the solicitor as a deceased client’s son and referring to the deceased as ‘Mrs’ rather than ‘Mr’, and a note would be placed on her performance record.

Gold then said she would be “better suited to a traditional estate agency”, which Gomes claimed she took to mean he thought she was too old to work in that particular office. When she asked him to explain what he meant, he told her to “sleep on it and decide what you want to do”, which Gomes said she took to mean he thought she should leave the business. At the time, she had intended to stay with the company until she retired at 65.

Shortly after, Gomes took sick leave for work-related stress. She also filed a grievance against Gold. Although the outcome of the grievance meeting concluded that Gomes should be supported with more training and that the original meeting with Gold should not have been carried out in the manner that it was, Gomes was not satisfied. She not only appealed but also tendered her resignation.

Allowing Gomes’ claim for age discrimination, the tribunal concluded the phrase ‘better suited to a traditional estate agency’ was a reference to her age, noting that it was defined in the Oxford English Dictionary as ‘long established’ and it was unlikely that such a comment would have been made to a younger employee. The tribunal also allowed the claims for harassment related to age and constructive unfair dismissal.

The tribunal – which was overseen by employment judge Bedeau, Mrs S Boot and Mr D Bean – also found that the person put in charge of handling the grievance meeting compromised their impartiality, in particular because they allowed Gold to be present, despite him being the subject of the complaint.

“This is a reminder to employers of the risks of using words that could be taken to be a reference to someone’s age,” Laurie Anstis, senior associate solicitor at Boyes Turner, told People Management. “An age discrimination [claim] can be brought where the comments allude to an employee’s age, even if they do not directly refer to it.”

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