Dove v Brown & Newirth Ltd – Workplace Nicknames and Unfair DismissalJune 3, 2016
Facts of the Case
Mr Dove was a sales representative for Brown & Newirth Ltd (“the Respondent”), a jewellery manufacturer, which employed about 43 people. He had worked for the Respondent for 25 years and had a clean disciplinary record. In 2011 Mr Ball began working for the Respondent as a sales director and in January 2014 Mr Thomas, who was in his early 30s, was appointed Head of Sales. Mr Dove was the only employee over the age of 50. At some point during Mr Dove’s service, Mr Thomas began nicknaming him “Gramps”. He used this nickname in emails and also verbally when others were present. The Respondent’s position was that this was an affectionate term of address which was not intended to be insulting. Despite the fact that Mr Dove claimed in the Tribunal that he found this to be hurtful there was evidence of him referring to himself by that nickname in email correspondence.
The Respondent claimed that Mr Dove was underperforming and that complaints had been raised by customers. The extent to which these concerns had been raised with Mr Dove was a matter of contention at the Tribunal. In March 2015 the decision was taken by Mr Ball to transfer 5 of Mr Dove’s customer accounts to Mr Thomas. Mr Dove received notice of his dismissal on 1 April 2015 by email on the grounds of “some other substantial reason”.
Mr Dove unsuccessfully appealed this decision on 8 April 2015. He claimed that the customer complaints had not been raised with him at any of the meetings and that Mr Ball had been unwilling to consider potential changes such as a re-allocation of some of Mr Thomas’ work to him. This appeal was rejected on 7 May 2015 and consequently Mr Dove took his case to the Employment Tribunal where he claimed age discrimination and unfair dismissal.
It was held that Mr Dove had been discriminated against because of his age. Mr Dove’s accounts had been transferred to a younger colleague in the company. A number of the comments made by the customers made reference to Mr Dove’s age, for instance, that he was “long in the tooth”. Other comments made can appear to be applied to older people, for example, “traditional”, “old fashioned” and customers wanting a “fresh approach”. Mr Ball failed to appreciate the discriminatory comments made by the customers and should have acted with more vigour in order to rectify the situation, but instead he adopted the discriminatory and stereotypical attitudes himself. Even though the use of the nickname “Gramps” was not meant to offend, the Tribunal found that this does not mean that it was not discriminatory. Therefore Mr Dove’s age discrimination claim was successful.
It was also held that Mr Dove had also been unfairly dismissed. The Respondent failed to address the alleged concerns or even make Mr Dove aware of them. Also, by the time the issue was raised with Mr Dove, the decision to remove the customers from his territory had already been made. It was held that Mr Ball’s actions were ‘”very far from pulling out all the stops” in order to change the minds of the customers or to help secure Mr Dove’s job, as negotiating Mr Dove’s salary was not taken any further. Therefore, the Respondent could not show that it had some other substantial reason to dismiss Mr Dove. Indeed the Tribunal stated that even if it had such a reason, the dismissal was also not within the reasonable band of responses.
The Tribunal noted that Mr Dove was successful in mitigating his losses and securing alternative employment. He was rewarded compensation which included awards for unfair dismissal, age discrimination, future loss, injury to feelings, loss of his statutory rights and expenses incurred in looking for work, which amounted to £63,390.95.
There are a number of lessons which can be taken from this case for employers. Firstly, nicknames which could be seen as discriminatory in any way should be actively discouraged. This case shows that the argument that the names were only used as harmless banter will not be readily accepted by the Tribunal. Secondly, an employee should be informed when there are issues such as complaints against them well in advance of being dismissed as a result of them. This provides the employee with an opportunity to give his or her side of the story and, if necessary, take action to rectify the situation. Thirdly, a company should look into alternative measures such as a re-allocation of work. The dismissal of the employee should always be the last resort.
Michael Black, Director, Employment Department
Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.