Using the phrase 'back in your day' to an older work colleague could count as age harassment, employment judge rules

Using the phrase 'back in your day' to an older colleague at work could count as age harassment, an employment judge has ruled.

The ruling came in the case of nursing assistant Margaret Couperthwaite - who is in her 60s - after she sued for age harassment, alleging a younger colleague suggested an operation had been free on the NHS 'back in your day'.

Although her claim was dismissed, as the tribunal found the comment was never made, it was concluded that the 'barbed and unwelcome' expression highlighted the age gap between two people and may amount to 'unwanted conduct'.

This means that elderly workers could now successfully sue as the comment is 'related to age' with the hearing in Watford saying they would be 'likely to accept' the argument in future cases.

Ms Couperthwaite had claims of discriminatory dismissal, disability discrimination and harassment thrown out after working at Hilton Nursing Partners in Ashford, Kent, as a personal nursing assistant from December 2018.

She was twice promoted at the centre which provides healthcare and patient assessments for those who have been discharged from hospital, the last of which was in January 2021.

Ms Coupertherwaite had suffered from cancer since 2014 and had a 'significant amount of treatment' for it in that time.

However, in January 2021, manager Joanna Stevens invited her to a sickness disciplinary meeting after it was deemed her absences had 'hit a trigger'. As a result, she was handed a written warning which would last a year.

The tribunal heard bosses were 'aware' of her previous cancer and treatment for it - but these concerns had been prompted after Ms Couperthwaite had four days off with a 'cut finger'.

She complained her age had been a contributing factor when she was not selected for promotion to team leader in March 2021.

In October 2021, her colleague Kelsey Ford - who the panel heard was 'a lot younger' than Ms Couperthwaite - made two comments about her age.

Explaining how she was left 'offended', she said: 'Kelsey would also make derogatory comments about my age, such as 'well back in your day it probably was free, but I would not get it free now*'

'I contend that the comment amounts to harassment on the grounds of age.'

Despite no date being given for the remark or any wider context, Ms Couperthwaite told the hearing it had been during discussion about 'some elective surgery'.

In a later email, she wrote: '...this is not the first time she has brought my age into our conversation as when discussing certain surgeries, these included operations that I have had that were on the NHS, she then said well back in my day it was probably free but that wouldn't happen now.'

She was later sacked that month 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'.

Dismissing all of her claims, Employment Judge Patrick 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.

'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.'

However, he ruled the panel would have been 'likely to accept' they would have been unwanted conduct, had they been said.

'We would accept that the words 'back in your day' are related to age,' he continued.

'Depending on context, the implication might be 'at the time that you were the same age that I am now, which was a significant period of time ago'.

'For similar reasons, and subject to being satisfied about the context of the conversation, we would have been likely to accept that such words would have been unwanted conduct, by being an unwelcome and barbed highlighting of the age difference between Kelsey Ford and the complainant. 

'However, it would be cheapening the words of [the Equality Act] to conclude that Kelsey Ford's purpose would have been to have the effect described there, or, alternatively, that it would be reasonable for the tribunal to treat those words as having such an effect.'