Age Discrimination - the true cost of an off the cuff remark

A woman in an age discrimination case has now been awarded nearly £190k after a manager made an “off the cuff remark”.

The Facts

In July last year we reported on the case of Sturdy v Leeds Teaching Hospitals NHS Trust (‘the Trust’).

In this case the claimant Ms Sturdy, was a senior NHS manager. In 2006, she was passed over for a position running breast screening services in favour of a colleague 13 years her junior. She was the preferred candidate for the role, having had 38 years previous experience in running a screening service within the Trust. She told a manager that she was three years from retirement age of 60, to which the manager allegedly replied “I didn’t realise you were so old”. A less experienced colleague, aged 43, was then given the post. At the Tribunal, managers could not explain why they did not give her the new position. The Tribunal held that Ms Sturdy had been discriminated against on the basis of her age.

Age Discrimination Compensation

She was awarded £33.5k for injury to feelings, the highest injury to feelings compensation that has been awarded to date. She was also awarded £5.7k in aggravated damages as well as interest and a statutory uplift of 25% for a failure to follow the correct statutory grievance procedures. Her total compensation award was just over £49k (with her financial losses still to be assessed).

She was also awarded aggravated damages. In this case, the aggravating factors included an assertion that her case was one of “sour grapes” and that she was seeking to blame others for her failure. There were also suggestions made that her performance at interview was so poor that it called into question her ability to do the job that she had successfully done for many years.

Mrs Sturdy has now been awarded £147k in compensation to cover lost salary and pension rights, bringing the total to just under £187k.

Practice Points

This case is significant as it is the highest ever award in a UK discrimination case for injury to feelings. The additional compensation award makes this is a significant case, of which employers should be aware.

Unlike compensation for unfair dismissal, compensation for discrimination does not have a cap. Moreover, unlike compensation for unfair dismissal, compensation for discrimination can include an element of non-economic loss. This means that in discrimination claims, a claimant can seek to recover compensation for injury to feelings and personal injury (for example psychiatric injury) caused by the discrimination. Claimants can also seek to recover aggravated damages for the way in which the respondent has acted for example if they have acted in a high handed, malicious, insulting or oppressive manner towards the claimant. This is on top of any award for loss of earnings, interest, future earnings and other economic losses.

Employers should look to their own practices on equal opportunities to avoid huge compensation claims. For example, are managers trained in equal opportunities, does the company have an equal opportunities policy which is actually displayed or kept up to date, and if grievances or complaints are raised does the employer have a grievance policy where complaints are dealt with proactively?

Also once allegations are raised be careful not to fall foul of allegations of victimisation – treating someone less favourably because of their complaint. The way in which a respondent handles (or mishandles) a complaint can also add to compensation awards or lead to claims for victimisation. Also beware of 'off the cuff' comments. Comments about a persons age etc may be intended as a backhanded compliment (“I didn’t realise you were that old”) but in the cold light of a Tribunal, they can be seen very differently.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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