“Half-dead Dave” – a derogatory age-related epithet amounts to discrimination
Research shows that the number of Employment Tribunal claims observing Respondents utilising the label “banter” as a justification for alleged discrimination has risen from 67 in 2020 to 97 in 2021; an increase of 45%.
In the case of David Robson -v- Clarke’s Mechanical Ltd, the Claimant was subjected to age-related name calling by management and peers for a period of five years. He was 69 at the time of his dismissal (which was also found to have been tainted by age related discrimination) and had worked for the Respondent Company since 2012.
The Claimant’s line manager and colleagues would refer to him as “Half-dead Dave” and the perpetrators considered such comments as workplace banter.
Having heard evidence from both sides, the Tribunal determined that the term “Half-dead Dave” for the defined period, constituted a continuing pattern of misconduct causing detriment to the Claimant and amounted to acts of direct discrimination on the grounds of age.
When giving his witness evidence, the creator and instigator of the name calling was unapologetic and dismissed it as mere banter. Despite the epithet, Half-dead Dave, being indisputably a reference to age.
When the Claimant was asked why he never raised a complaint about the name calling, he provided compelling evidence and stated, “I just thought - only a few years left at work, let’s just put up with it. I didn’t want the distress of it all”.
He went on to say, “...my daughter sat me down and said can we go through everything, she was upset. You would be. Half-dead, what, because I am old. It wasn’t easy to sit and explain to my family.”
In respect of the name-calling, the Tribunal awarded a compensation in the sum of £7,000 which reflected the long-standing use of the name and its frankly derogatory reference to his age.
This case is yet another stark reminder to employers for two reasons. Firstly, the company can be vicariously liable for the conduct of their employees, and secondly, they may fail to justify workplace banter unless the Claimant made similar jokes, was not offended or the comment was not connected to a protected characteristic.
Discrimination of any form is not just banter and this concept is accepted across society at large.
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