Council worker’s flatulence incident ruled age discrimination

Coronavirus continued to spread nationwide, creating significant concern and economic difficulties. England had just come out of a second national lockdown when Lee Marsh, a council housing worker, faced accusations of misconduct. Marsh, an Estate Caretaker at Birmingham City Council, was found to have engaged in age discrimination against a younger colleague.

An employment tribunal heard that Marsh passed wind on a junior colleague during lunch, which the judge ruled as age discrimination. The judge noted Marsh’s issues with his ambitious younger colleague, who might have authority over him.

The tribunal learned that Marsh threatened the trainee caretaker after he objected to Marsh’s behaviour. The junior worker recounted that Marsh warned him about speaking out, claiming he could get him fired. Marsh reportedly said, “You are only a trainee; I can get rid of you like I have others.”

It was acknowledged that Marsh warned his colleague against applying for a senior role, stating, “If any of you youngsters get this job… I will tell you to f*** off,” because he would not take orders from younger people.

The junior colleague testified that once Marsh learned of his career ambitions, he started making derogatory comments such as “these babbies coming in and trying to take over” and “you are only a pup.”

During their dispute, Birmingham City Council, Europe’s largest council, was dealing with severe financial issues. The tribunal heard that the younger colleague, in his mid-30s, started working at the council in October 2020. By December 2020, he had shown ambition in his career, leading to an incident on December 8, where Marsh broke the wind while he ate.

The two had several altercations, including a November 2021 incident where Marsh threatened the trainee with violence, involving a chair.

Both workers faced gross misconduct allegations over the chair incident, resulting in the junior worker going on sick leave and eventually resigning. The council admitted the junior worker was constructively dismissed, as he shouldn’t have faced these allegations.

Employment Judge Christopher Camp concluded that the “breaking wind incident” was age discrimination. He found substantial evidence that Marsh had issues with the younger worker potentially holding authority.

The judge ruled that Marsh’s actions were motivated by the junior worker’s age. However, the claims of age discrimination and harassment failed because they were raised too late. The trainee is set to receive compensation for unfair dismissal.

Last September, Birmingham City Council declared itself in financial distress under a Section 114 notice. This followed an admission that it owed up to £760 million to settle an equal pay claim, stemming from a 2012 Supreme Court ruling that found women workers were not receiving equal pay and benefits compared to men in similar roles.