Birmingham City Council Worker Wins Age Discrimination Case After Manager’s Shocking Harassment Incident

In the case of XYZ v Birmingham City Council, the tribunal heard of how a manager broke wind on a Birmingham City Council Worker to “bring him down a peg”. This was followed by numerous instances of what the tribunal classified as age discrimination and age-related workplace harassment. Ultimately, the Birmingham City Council’s resignation was held to be constructive dismissal.

Below, we discuss the facts of and judgment in this case. We also consider what constitutes age discrimination and what employees can do if they experience it.

The legal experts at Redmans Solicitors have considerable experience in the field of age discrimination. If you believe that you have suffered age discrimination at work, we would be happy to advise you.

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The facts of XYZ v Birmingham City Council

Birmingham City Council Worker Suffered Colleague Breaking Wind on Him

The claimant, who was unnamed throughout the proceedings, commenced employment with Birmingham City Council (the respondent) in October 2020. Initially, he was employed as a Trainee Estate Caretaker. Over the two years of his employment, the claimant was promoted to Grade 2 Neighbourhood Caretaker and then to Grade 3 Neighbourhood Caretaker with supervisory responsibilities.

Another Birmingham City Council worker and colleague of the claimant, Lee Marsh, was involved in some of the incidents comprising the claimant’s claims. It is important to note that the claimant was aged in his mid-30s and Mr Marsh in his mid-50s.

The first of these incidents took place on 8 December 2020. While the claimant was eating lunch, Mr Marsh passed wind on the claimant and found it amusing. After the claimant complained about this to his supervisor, Mr Marsh called him “grass” and threatened his job security. Mr Marsh then proceeded to ignore the claimant for weeks following his complaint.

Birmingham City Council Worker Suffered Multiple Subsequent Incidents

Following the initial incident, the claimant experienced numerous further instances of unpleasant behaviour from Mr Marsh. In March 2021, Mr Marsh told the claimant not to mess with him because he “snaps and he hits very hard”. On two occasions, Mr Marsh referred to the claimant as being younger than him, stating that he would not take instructions from “one of you youngsters”.

In October 2021, Mr Marsh repeatedly asked the claimant about an ongoing court case with which the claimant was involved. This related to abuse experienced by the claimant as a child and which caused the claimant considerable distress. Mr Marsh asked the claimant whether the matter related to “kiddy-fiddling”. Mr Marsh and another Birmingham City Council worker then ignored and avoided the claimant later that month.

On 5 November 2021, an altercation took place between the claimant and Mr Marsh. This involved the claimant confronting Mr Marsh and verbally attacking him. Mr Marsh then attempted to punch the claimant and threatened him with a chair before the situation was defused by a colleague.

Birmingham City Council Worker Raised Grievance for Age Discrimination

After the incident on 5 November, an internal investigation was conducted by the respondent. The investigation reports recommended that the claimant and Mr Marsh were both guilty of gross misconduct. Disciplinary proceedings then followed. Mr Marsh was found to have committed misconduct during a hearing in July 2022 and was given a written warning.

In the meantime, on 23 May 2022, the claimant was signed off work due to ill health. There were multiple communications between the claimant and the respondent from June to October 2022 concerning the claimant’s disciplinary matters. On 12 October 2022, before any disciplinary hearing had taken place, the claimant resigned.

The claimant subsequently brought several claims against the respondent. These included age discrimination and disability discrimination and age and disability-related harassment regarding incidents involving Mr Marsh. The Birmingham City Council worker also alleged constructive dismissal.

The Employment Tribunal’s Judgment

This case was heard at the Birmingham Employment Tribunal by Employment Judge Camp. The respondent made multiple admissions of matters of fact i.e. that all the incidents described above did, in fact, occur. The respondent also admitted constructive dismissal of the claimant on the basis that there had been a breakdown of trust and confidence between the claimant and respondent.

It was for the tribunal to decide whether any of the incidents constituted either age or disability discrimination, or age or disability-related harassment under the Equality Act. For discrimination to have occurred, the claimant must have been treated less favourably than another employee. Such less favourable treatment must have been because of his age (for age discrimination) or his disability (for disability discrimination).

For workplace harassment to have occurred, there must have been unwanted conduct from one person towards another. The conduct must also have had the purpose or effect of violating their dignity or “creating an intimidating, hostile, degrading, humiliating or offensive environment”. For workplace harassment to be age or disability-related, the unwanted conduct must be related to the claimant’s age or disability.

Age Discrimination vs Disability Discrimination

The tribunal held that none of the conduct to which the claimant’s claims related occurred because of his disabilities. The Judgment further explains that while the claimant’s mental health was impacted, the conduct itself was not related to the disability. As such, all the disability-related claims brought by the Birmingham City Council worker failed.

Certain claims for age discrimination or age-related harassment which involved Mr Marsh were upheld by the tribunal. This is because “there [was] ample evidence that Mr Marsh had ageist prejudice towards the claimant”.

Mr Marsh passing wind on the claimant and avoiding him from 25 October 2021 were held to be instances of direct age discrimination. Comments by Mr Marsh to the claimant were held to be instances of age-related harassment but failed due to the claim being out of time.

If you believe you have experienced age discrimination or age-related harassment at work, don’t hesitate to contact Redmans Solicitors today. Our friendly and professional team of employment law specialists has significant expertise in this area. We will be delighted to listen to your case and advise you on the eligibility of your claim.

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