A judge has ruled that breaking wind on a younger colleague at work amounts to age discrimination in a case involving bullying and threats of violence.
Lee Marsh, a manager at Birmingham City Council in his late fifties, was said to have found it “amusing” to break wind on a younger colleague, employed as a caretaker, eating his lunch.
An employment tribunal heard that after Marsh did so, he told the younger worker, who was in his mid-30s: “I can get rid of you like I have the others in the past.”
Marsh and the caretaker – who had only worked for the council for two months after joining in October 2020 – had a serious of disputes, with Marsh warning him about trying to get a more senior role. “If any of you youngsters get this job … I will tell you to f*** off,” he was alleged to have said.
The younger worker eventually went on sick leave before resigning, in October 2022, after being summoned to a disciplinary hearing, which he could not attend because of ill health. He later sued the council and is eligible for compensation for unfair dismissal. Council officials admitted that he had been constructively dismissed and should not have faced the allegations.
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The younger colleague, granted anonymity by the tribunal, made a claim against the council and is eligible for compensation for unfair dismissal.
The judge at a tribunal in Birmingham ruled that the incident legally qualified as age discrimination because the older manager harboured animosity towards his “ambitious” colleague. However, the younger man will not be awarded damages on that issue because the claim was brought too late.
In its report, the tribunal said that after Marsh had broken wind at the younger man, had said: “You have got a lot to say for yourself for a newcomer.”
The younger man said in evidence that he replied “I haven’t” and added that he had “the right to object to disgusting behaviour”.
The caretaker said Marsh then told him: “Be careful how you speak to me as I can get rid of you”. He added: “He said, you are only a trainee: I can get rid of you like I have the others in the past.”
The tribunal judgment found that the following actions by Marsh were examples of direct age discrimination: passing wind on the claimant and telling him he could get rid of him in December 2020; and from October 2021, Marsh “no longer interacting the same with the claimant and avoiding being around him”.
Employers who attempt to justify workplace conduct with the label of banter are on shaky ground” – Samantha Dickinson, Mayo Wynne Baxter
Age-related harassment included, in March 2021: Marsh telling the claimant “not to mess with him because he snaps, and he hits very hard”; on 5 November 2021, Marsh threatening the claimant with physical violence involving the use of a chair.
Employment judge Christopher Camp ruled that Marsh had wanted to “take [the younger man] down a peg or two, to show him who was boss and to curb his ambitions.”
He said Marsh’s comments were “outside the realms of acceptable workplace banter,” and ruled that the caretaker suffered age discrimination and age-related harassment.
Lessons for employers
Samantha Dickinson, partner, Mayo Wynne Baxter, told Personnel Today that beyond the headlines focusing on breaking wind, there were many salient lessons in this case for employers:
“Trying to legitimise bullying behaviour by calling it banter is doomed to fail in a tribunal, not least because it disregards the harmful impact on an individual,” she said.
This also displayed a misunderstanding of the legal tests the tribunal would apply, said Dickinson. “An individual’s reasonable perception of the conduct they are subjected to is part of a tribunal’s determination in cases such as these. Employers who attempt to justify workplace conduct with the label of banter are on shaky ground.”
Such a defence suggested a lack of seriousness in addressing workplace misconduct and will damage an employer’s credibility generally, she added.
“This case was also about constructive dismissal,” Dickinson continued, “and the tribunal noted that the last straw, which entitled the claimant to resign, was the employer pressing ahead with a disciplinary hearing despite the claimant’s inability to attend it or submit written representations due to his ill health.
“The employer conceded this point so there was no determination of it by the tribunal.
“Employers should always think carefully about whether it is appropriate to push on with a disciplinary hearing in these circumstances. Sometimes it might be the right thing to do, but not always and a tribunal will look to employers to justify such a decision.”
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