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

It comes after Margaret Couperthwaite, a former employee at Hilton Nursing Partners, Ashford, sued for age harassment, alleging a younger colleague used the expression.

However, Ms Couperwaite, who is in her 60s had her claim dismissed after an employment tribunal found the comment was never made.

Despite this, it was concluded that the “barbed and unwelcome” expression highlighted the age gap between two people and may amount to “unwanted conduct”.

This means older workers could now sue if the comment is made, after the tribunal noted it would be 'likely to accept' the argument in future cases.

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

During last month’s four day hearing at Watford Employment Tribunal, Ms Couperthwaite explained how she was left “offended”.

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

The alleged comment was related to an operation being free on the NHS.

Ms Couperthwaite told the hearing it had been during a discussion about “some elective surgery”.

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.”

Ms Couperthwaite was later sacked after not wearing a mask and PPE at the home of an elderly patient.

It was in her appeal she made the claims of being the victim of “bullying and discrimination”.

Judge Patrick Quill added: “We would accept that the words 'back in your day' are related to age.

“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.”

.