Saying ‘back in your day’ to an older colleague could amount to ‘unwanted conduct’ an employment judge has written in a tribunal decision.
Presiding over a case involving a nursing assistant working in Kent, employment tribunal judge Patrick Quill said that the “barbed and unwelcome” expression used to highlight an age gap between co-workers could amount to “unwanted conduct”.
Older workers may sue under discrimination law over the use of the comment because it “related to age”, he added.
Nursing assistant Ms M Couperthwaite, who is in her sixties, unsuccessfully sued her employer, Hilton Nursing Partners, for discriminatory dismissal, disability discrimination and harassment in a claim alleging that a younger colleague suggested an operation had been free under the NHS “back in your day”.
Couperthwaite had been sacked by the company in October 2021 after not wearing a mask and PPE at the home of an elderly patient. In her appeal, she said she was the victim of “bullying and discrimination”.
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Her claim was dismissed by Watford employment tribunal partly because Judge Quill found no clear evidence that the “back in the day” comment had been made. However, he noted that such a remark could have been unlawful if it had been.
The alleged use of the phrase did not relate to the reason for her dismissal from her job.
Couperthwaite received a cancer diagnosis in 2014 and had been receiving a “significant amount of treatment” in subsequent years.
She gained her job at Hilton Nursing Partners in Ashford, Kent, in 2018 and had been promoted twice.
Her manager, Ms J Stevens, called Couperthwaite to a sickness disciplinary meeting in January 2021 when it was deemed that the nursing assistant’s absences had “hit a trigger”. This was not related to Couperthwaite’s history of cancer – it was after she had taken four days off sick for a cut finger. She was given a written warning.
She complained she had not been promoted to team leader that same year because of her age.
Also in 2021, a colleague, Ms K Ford, who was described as “a lot younger” than Couperthwaite, was said to have commented to her about a form of elective surgery: “Well, back in your day it probably was free, but I would not get it free now.”
Couperthwaite told the tribunal: “I contend that the comment amounts to harassment on the grounds of age.”
Judge Quill said: “For the alleged ‘back in your day’ comment, if those four words were said at all, then we do not have details of the specific context in which they were said, and we do not have details of the date when it was allegedly said.
“If any remark similar to ‘back in your day’ was ever made, we are not satisfied that [Ms Couperthwaite] was significantly offended by it.
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“She is unable now to recall the specific details, and there was no complaint about the alleged comment until after she had been dismissed for wholly unrelated reasons.”
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