Like any mildly deluded septuagenarian, I felt a brief frisson of sympathy for Filipe Edreira, offended two years ago because a manager civilly offered him a chair while younger colleagues stood. He was 66.
Many of us feel just such dismay when offered a seat on the Tube, an unwelcome reminder that you look your age. But sympathy evaporated on hearing that Edreira hauled his employer through an employment tribunal over two years, following his departure over something else. The horror is that the judge, though rejecting his case, ruled that yes, indeed, offering an older employee a chair while younger ones stand really could amount to “less favourable treatment” and breach equality legislation. Not quite a hate-crime, but like many cases of miffed employees, enough to gum up the works for months and waste legal and business resources.
Claims for age discrimination have risen five times faster than other categories since the pandemic; maybe not unconnected to the fact that compensation in this area is uncapped and can include “injury to feelings”. Let nobody forget the case of the 89-year-old NHS secretary who couldn’t use a computer. She was sacked but won her case on grounds of poor training. She got a reported £200,000.
• Offering seat to older staff ‘risks discrimination’
What manager will now dare to make a friendly offer of a chair without bleating: “Anyone at all wanting a seat?” Already recruiters are wary of taking on young women (might get pregnant) and older women (might be menopausal). Race, gender and sexuality ring alarm bells in case offence is taken because — face it — in some robust trades you can’t always trust the sensitivity of your existing workforce.
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Now, as the pension age inexorably rises and the nation needs us oldies, there will be even more wariness about our ability to claim fragile feelings. One 64-year-old personal trainer sued a gym chain for age discrimination because it kept playing music of the past 18 months — rather than, I suppose, Boom Radio. He lost, but some poor company acountant will have been holding their breath about the potential cost.
Employment protection matters. Abuse of the weaker party anywhere is disgusting. So is “fire and rehire”, the contempt for workers we saw in the P&O case, and lack of reasonable consideration for pregnant women and people gallantly dealing with disabilities. If an employer fakes or exaggerates reasons for dismissal, or a working day is made intolerable to a decent employee, he or she has the right to fight back.
But watching the process is profoundly dispiriting. What our legal editor described in the Edreira case as “increasingly labyrinthine workplace protocols” grind with appalling slowness. Many cases don’t get a final hearing for 18 months, if then. Just over half of claims are settled, some using Acas, but the 47 per cent that go to tribunal are massively delayed, mired in lumbering protocols laid down by the development over 70-odd years of idealistic legislation. After a healthy period of decline as employers and workers sorted out their grievances more quietly, tribunals have mushroomed since Covid, nearly half a million outstanding. It is a jungle of grievance, complaint, impossible arguments about injured feelings and prolonged claims of sickness, often mental.
There are real injustices — some employers are pigs — but also there can be rancorous opportunist complaining on one side and on the other inept management. I have watched more than one case crumbling, slowly and expensively, simply because a business or public service wanted to remove an employee and tried to frighten them with accusations of gross misconduct. This devastates individuals’ morale, and fighting back needs a good union or the ability to hire a tough lawyer. (Apparently there is a well-practised legal Exocet affectionately known as the “eat shit and die” letter to the employer, which can produce a more rapid settlement.) The waste and sadness, though, is that even winners rarely return to the same job.
On the other side, when it is a worker alleging discrimination (often after demotion or suspension), the root cause of misery seems to be that management simply failed to notice what their workplace was actually like: rising tensions, bullying, a rude, uncivilised or lewd culture, co-workers waving meat at a vegan colleague for a laugh, young lawyers leaving a witch’s hat on an older female colleague’s desk, unwanted nicknames. Then all this grinds through the geologically slow processes of legal disputes about feelings. If it’s a school, teachers can be suspended for months — to the real detriment of pupils. In business, the law on discrimination, especially citing private feelings, increases wariness in employers and in their employees provides a dangerous incentive to claim mental illness and future inability to work. How can a country function well if employers and workers are so wary of each other and their rights? We still have the BBC’s highest-paid newsreader, Huw Edwards, drawing a full salary after nine months’ invisibility and nobody seems to know what to do. It makes you almost proud to be a precarious freelancer, dangerous to nobody.
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Labour now promises full rights from the first day of hiring and a ban on zero-hours contracts (which actually some people find useful). Both quixotic, well-intentioned reforms feel like more nails in the coffin of healthy hiring relationships. They might do better to examine the intricacies, ambiguities and sluggishness of employment law and those who feed off it. Oh, and maybe beef up Acas, which is independently rated as saving ten times what the Treasury gives it but which clients anecdotally reveal as frustratingly slow and overloaded.
