Age discrimination: Are office-related birthday cards ageist?

When the law changed in 2006 to bring in protection related to age discrimination, there was the usual furore about how it would be unlawful to send a colleague a birthday card as this would be ageist. So much so that some employers had banned birthday cards between colleagues in order prevent any claims. Crazy - right?

Munro v Sampson Coward LLP is fortunately a helpful pointer to common sense applied by the Employment Tribunal on this subject. 

In the above case, Munro, a legal secretary, had objected when another secretary, aged 52, said to her “it was your 50th birthday wasn’t it? – you can’t hide it you know”, and subsequently the firm sent her a birthday card. 

A few days later, Munro provided a written complaint to one of the partners claiming that she had felt "humiliated" and "shocked" by the unsolicited comments and that she wanted to "keep her private life out of the workplace".

In unrelated matters (although the timing proved somewhat unfortunate), the firm took disciplinary action against Munro due to long running performance issues a month or so after her written complaint. In response to the disciplinary proceedings, Munro denied there were any performance issues and alleged that she was being targeted because of her age, and she argued that the comments about her age and the birthday card supported this. She also alleged whistleblowing, alleging that her complaint about the birthday comments had been handled in breach of data protection legislation.

The Employment Tribunal held that Munro’s “sensitivity about her age appeared unusual and extreme” and there was insufficient evidence to show that other members of staff who were over 50 would have been treated differently. It also stated that the comment to her from the other secretary was “trivial and had not been delivered maliciously" and that “the birthday card was intended for the claimant as an act of kindness” by her employer. The Tribunal added: “We concluded that the claimant was wrong to have artificially attempted to cloak herself with the protection afforded by the whistleblowing legislation by making disclosures which had not been public interest.”

Munro’s claim was ultimately dismissed. Furthermore, the Employment Tribunal ordered that she pay £1,700 of the Respondent's costs. As we often express, it is unusual for costs to be awarded against the unsuccessful party, however the fact that it was done in this instance gives and indication of how spurious they thought Munro's case was.

For more information or to speak with Roy Magara,  a specialist employment lawyer at Magara Law, please call 01869 325 883 or email roy@magaralaw.co.uk. Magara law is an employment law firm based in Bicester, Banbury and Paddington, London, and services clients nationwide.