Margaret Couperthwaite, a nursing assistant in her 60s, made a claim for age harassment against her younger colleague, Kelsey Ford, who she claimed had suggested an operation was free on the NHS "back in your day".
Couperthwaite was dismissed from her role in 2021 due to unrelated reasons, the tribunal document notes.
The judge dismissed Couperthwaite's claim, as it found that the comment had not been made.
But the judge noted that if it had been made, the tribunal would accept it was related to age and would have accepted it was unwanted conduct.
Patrick Quill, the judge, described the expression as “barbed and unwelcome” and said that it would have highlighted the age gap between two people, which would be accepted as unwelcome conduct.
Read more: Being told to ‘grow up’ not ageist, tribunal rules
Simon White, chief people officer at employee engagement platform Blink, told HR magazine that whether expressions are appropriate at work or not should be decided based on the experience of the person receiving it.
He said: “There are words and phrases that should never be used at work, regardless of whether they are deemed 'common' and there are things that are open to more interpretation, but that interpretation comes down to the reasonableness of the comment and the experience of the person receiving it.
“The real question in my opinion is: is the behaviour reasonable? While the phrase may be deemed as common, it is a direct reference to someone's age by including the word “your” so if the person has been reasonably offended by it, then it does have the possibility to be interpreted as discriminatory.”
White added that the intent behind language should not distract from people’s experiences.
He continued: “The question of intent will get raised, but that’s a distraction. The intention of the person saying it can make it worse if they mean to offend someone, but regardless of whether they mean to offend, it doesn’t nullify the experience of the person receiving it.”
Couperthwaite, who had previously received treatment for cancer, told the tribunal that she had been offended by several comments Ford made relating to her age.
“This is not the first time she has brought my age into our conversation,” Couperthwaite told the hearing.
Read more: Clubbing for a work party is not age discrimination, tribunal rules
Sharon Gibson, senior HR consultant at WorkNest, commented that the judge's comment demonstrates the importance of inclusive language at work.
She told HR magazine: "Language is complex and changing all the time. Using outdated or inappropriate terminology can be deemed discriminatory."
Gibson added that HR should encourage open discussions about the importance of inclusive language with employees.
She continued: "There are certain principles that HR professionals can apply to support their employees with understanding what is acceptable language in the workplace.
"For example, using people-centric language and a strengths-based approach that focuses on the abilities, knowledge and capacities of a person is recommended.
"Employers should look to foster a culture of learning by providing resources and guidance on inclusive language, and encouraging open discussions about its importance and impact."
White continued that HR has an obligation to respond to complaints of employees saying something unreasonable.
He added: “If someone says something that is unreasonable then as employers we have a responsibility to react to that. If someone experiences something that they, reasonably, find unreasonable, then HR needs to react.
“This doesn’t mean that people have to be fired for a comment like this. There is education, mediation and personal action. HR’s role is to respond proportionately and promptly.”
