Comment that employee was ‘better suited to a traditional estate agency’ was direct age discrimination (Ms Carolina Gomes v Henworth Limited t/a Winkworth Estate Agents and Mr G Gold)

In the case of Ms Carolina Gomes v Henworth Limited t/a Winkworth Estate Agents and Mr G Gold (ET/3323775/2016) the Employment Tribunal held that an employee had been discriminated against because of her age when her boss told her she would be better suited to a traditional estate agency.

The facts in Ms Caroline Gomes v Henworth Limited t/a Winkworth Estate Agents

Ms Gomes was aged 59 and worked as an Administrative Assistant at Henworth Limited t/a Winkworths Estate agents (“Winkworths”), having been transferred from another agency.  At the previous agency she had focused on the sales management side of the business, but at Winkworths she was required to undertake work for the lettings team as well.

In February 2016 there was a meeting between Ms Gomes and Winkworths Lettings Director, at which Ms Gomes’ performance was discussed.  Ms Gomes was upset after the meeting and a further meeting took place at which Mr Gold, the second respondent, was present.  At the meeting Ms Gomes’ performance was discussed again.

At a meeting on the 3 March 2016 between Ms Gomes and Mr Gold, Mr Gold said to Ms Gomes ‘This marriage is not working’, and that she would be ‘Better suited to a traditional estate agency’.  He then said, ‘Sleep on it and decide what you want to do’.

Ms Gomes raised a grievance about those comments on the 8 March 2016 and at the same time stating that her inability to manage her workload effectively was through no fault of her own.  She stated that there were recurring IT issues, telephones had not been working and she had not received any formal training on her new letting’s responsibilities.

The grievance meeting took place on 23 March and was conducted by Ms Mendel, Winkworth’s external human resources adviser with Mr Gold present. Ms Mendal met with Mr Gold prior to the meeting and they travelled to it together, despite the fact that Mr Gold was the subject of Ms Gomes’ grievance.  At the meeting Mr Gold accepted that he had made the comments Ms Gomes had complained about, but denied that they had anything to do with her age.

Ms Gomes was advised of the outcome of her grievance in a letter dated 29 March 2016. Ms Mendal did not uphold Ms Gomes’ grievance, despite acknowledging that the comments complained of had been made. She found that Mr Gold associated a traditional estate agency as having good, core values and that his comment was not intended to make her feel that her age was not conducive to working in a modern estate agency.  She said Winkworths would put in place a Performance Management Programme to assist her, particularly in relation to lettings.

Ms Gomes appealed the outcome of her grievance, on the basis that Mr Gold should not have been present at the grievance meeting, that the comments made were aimed at destroying the trust and confidence in the employment relationship and that the comment ‘More suited to a traditional estate agency’ had related to her age.

After a perfunctory appeal process Ms Gomes’ appeal was not upheld and she went on to resign.

The Law

Under section 13 of the Equality Act 2010 (“EqA”), direct discrimination is defined as follows: (1) A person (A) discriminated against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.  Age is a protected characteristic under the EqA.

In relation to harassment related to age, section 26 provides that: (1) A person (A) harasses another (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, humiliating or offensive environment for B”.

Section 95(1)c of the Employment Rights Act 1996, provides, (1) For the purposes of this Part an employee is dismissed by his employer if….. (c) the employee terminated the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.

The decision of the Employment Tribunal

The Employment Tribunal did not accept that the comments ‘This marriage isn’t working’ and ‘Sleep on it and decide what you want to do’ were related to Ms Gomes’ age.  They did conclude that the words ‘Better suited to a traditional estate agency’ was a reference to Ms Gomes’ age as it was essentially a reference to her being old fashioned.  They therefore held that her direct discrimination claim because of age was well founded.  They also found that the comment was unwanted and that it had the effect of violating Ms Gomes’ dignity and as such was harassment because of her age.

Finally, they found that the conduct of Mr Gold and Winkworths was a fundamental breach of the implied term of mutual trust and confidence which did entitle Mr Gomes to resign and claim constructive unfair dismissal.

Our solicitors’ views on the case of Ms Carolina Gomes v Henworth Limited t/a Winkworth Estate Agents and Mr G Gold

Sacha Barrett, an associate in the employment department at Redmans, made the following comment on the case: “This case demonstrates the importance of employers being very careful about their choice of words when dealing with employees if they want to avoid the possibility of discrimination and/or constructive unfair dismissal claims.  It also highlights the importance of grievances being dealt with as fairly and impartially as possible”.

The decision of the Employment Tribunal in  Ms Carolina Gomes v Henworth Limited t/a Winkworth Estate Agents and Mr G Gold, 16 February 2017, case number 3323775/2016 can be found here.