Telling someone to “grow up” was not direct age discrimination.
Facts
Mr Kelly began working for Allianz in 2013 in Birmingham in a Customer Claims Support role. He was a high performer.
Mr Kelly referred a friend of his, Mr Asson, to Allianz. Both applied for the role of Team Leader and Mr Asson was successful. Their relationship deteriorated.
Ms Black was Mr Kelly’s manager. He raised concerns with her over Mr Asson’s work, saying that he thought Mr Asson was being intentionally difficult and that he had no choice but to escalate the matter. Ms Black told Mr Kelly to grow up, which he took as a suggestion that he was acting like a child. He felt humiliated by the comment.
Mr Kelly was subsequently absent from work due to stress. Mrs Brown (Ms Black’s line manager) spoke to Mr Kelly about his absence. There was a discussion of finances and whether he needed to stay in the job in order to continue supporting his partner. Mr Kelly’s partner was not working at the time due to long-term sickness.
Mr Kelly submitted a grievance in which he raised issues of bullying, harassment, and unlawful discrimination. Allianz rejected both the grievance and a subsequent appeal and Mr Kelly resigned in March 2018. At the time of the Employment Tribunal (ET) hearing, he was 34 years old.
Decision
Direct age discrimination
Mr Kelly identified his own age group as under-40s and the age group for comparison as over 40s. The ET therefore needed to decide whether Ms Black would have told a person in the over-40s category in the same circumstances to “grow up”? Seeing nothing discriminatory in the comment, the ET found that Ms Black would have “said that to anyone who she felt was behaving that way, whatever the age.”
In any event, Mr Kelly’s claim was doomed to fail after he admitted in the course of the ET hearing that there was no basis for saying Ms Black would not have said the same thing to someone of a different age group. He accepted that he was treated in the same way as someone of another age would have been treated.
Harassment
The ET found that Ms Black’s comment about whether Mr Kelly would be able to support his partner was in no way related to either his age or the age of his partner. His claim failed at this point and the ET did not need to consider the other limbs of the legal test for harassment.
The ET noted, however, that even if the comment was construed to be related to age, there was no evidence of an intention to violate Mr Kelly’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment. His age-related harassment complaint was therefore dismissed.
The judgment in available here.
Kelly v Allianz Management Service Ltd and others: 1301612/2018