There was no age discrimination after the wife of the business owner, and her father, accused a young employee of having an affair with her husband.
Facts
Ms Gosling started working as a Senior Canine Hydrotherapist for Mr Harding (a sole trader) on 2 April 2014.
Mrs Harding worked on the same site as Mr Harding’s business, and although their businesses shared a reception, Mrs Harding was not an employee of Mr Harding.
Mr and Mrs Harding separated in January 2018. Mrs Harding accused Ms Gosling, on 30 January 2018, of having an affair with her husband. Ms Gosling claimed that Mrs Harding thought this because she was “young, pretty and single.” This phrasing was denied by Mrs Harding.
On 6 March 2018 Mrs Harding demanded that Ms Gosling hand over her work keys because she had left the premises unlocked on two occasions.
On 20 March 2018 Mrs Harding’s father, Mr Johnson, confronted Ms Gosling at work accusing Ms Gosling of bad-mouthing Mrs Harding to the customers and of calling her a cow.
Ms Gosling raised an initial grievance on 18 April 2018. Ms Gosling left work two days later, believing that the grievance was not handled fairly. She eventually sent her letter of termination on 13 June 2018.
She brought five claims against Mr Harding including one for direct discrimination on the grounds of sex and/or age and another for harassment related to sex and/or age.
Decision
The Employment Tribunal dismissed both the claims for direct discrimination on the grounds of sex and/or age and for harassment related to sex and/or age.
Direct age discrimination
The Employment Tribunal believed Mrs Harding’s evidence that she did not use the phrase “young pretty and single.” This was believed as she was a credible witness and also because Ms Gosling did not use the phrase “young, pretty and single” when reporting the initial confrontation to Mr Harding.
They also concluded that the evidence showed Ms Gosling was told by Mrs Harding to return her keys solely in response to her leaving the premises unlocked on two occasions and this request was not, therefore, related to her age and/or sex. Ms Gosling was said to not have provided sufficient evidence to prove primary facts which the Employment Tribunal could use to conclude that she was treated less favourably in comparison to a man or older woman.
In other words, Ms Gosling failed to shift the burden of proof.
Age-related harassment
With regards to harassment related to sex and/or age the Employment Tribunal dismissed Ms Gosling’s claim for two reasons:
Although Ms Gosling found their conduct “offensive and upsetting”, Mrs Harding and Mr Johnson were not acting as agents for Mr Harding. Although the premises were shared by Mr and Mrs Harding, Mrs Harding could not be said to be an employee of Mr Harding. Mr Johnson did not come to the site at the request of Mr Harding and he was, therefore, not responsible for the actions of Mr Jonson. Even if their actions were regarding her age and/or sex the Employment Tribunal decided that Mr Harding could not have done more than he did to prevent the events of 6 and 20 March 2018 from occurring and he could therefore not be held liable for their behaviour.
There was insufficient evidence to convince the Employment Tribunal that even if Mr Johnson and Mrs Harding were determined to be agents of Mr Harding, their behaviour, despite being upsetting, was related to Ms Gosling’s age and/or sex.