Open plan offices: the land of collaboration, interaction and spontaneous conversations. But also the “joy” of noisy conversations, trouble concentrating and learning more about your colleagues than maybe you ever wanted to!

An article by Bronwyn Heenan, published in BusinessDesk today.

While I would always recommend an agreed understanding about how to work in an open plan, I never thought it could lead to an age discrimination claim.

An employment tribunal in the UK recently ruled that younger employees who are chatty and social at work are not guilty of age harassment, even if their behaviour irritates older colleagues.

The case involved Catherine Ritchie, a woman in her late 60s, who claimed her younger co-workers’ noisy and informal behaviour created a hostile work environment. 

She said she found it challenging to watch “extreme time wasting and low productivity” from “noisy and boisterous” younger colleagues and was left with a pounding headache and a hoarse voice from having to talk loudly to make herself heard.

She asked if she could work from home, which was not allowed, and was told to focus on meeting her targets rather than the surrounding circumstances. 

The tribunal found that while the behaviour may have been annoying, it did not meet the legal threshold for discrimination, ruling that even if workers are being “noisy and disruptive”, they are not breaking equality rules.  

The tribunal also said that it was “not reasonable” to assume that loud behaviour in the office is age-related and that it was unfair of Ms Ritchie to project her own standards of working on to her colleagues.

What about younger employees and age discrimination?

While age discrimination is often associated with older workers, younger employees also report feeling disadvantaged due to their age, or at the very least, treated differently because of their age. Concerns include that younger workers are frequently stereotyped as inexperienced, immature, or lacking commitment or that they are overlooked for promotions or leadership roles because they are perceived as “too young”, despite having the necessary qualifications and performance record.  

Similar to Ms Ritchie’s concerns about her younger colleagues, younger workers may also feel undervalued or dismissed by older colleagues who view their digital fluency or new approaches as disruptive. 

This can create friction in teams and lead to feelings of being undervalued.

It can also lead to a complete disconnect between colleagues. 

What is New Zealand’s legal position? 

I very rarely see claims of age discrimination.  

The most memorable was a few years ago when we had to disclose handwritten notes of a panellist on a redeployment interview.  

Top tip for everyone: the comment “dinosaur” was not overly helpful.

It is unlikely that a claim of Ms Ritchie’s nature would succeed in NZ. In an employment context, under both the Human Rights Act 1993 and the Employment Relations Act 2000, age is a prohibited ground of discrimination. 

The test for age discrimination involves determining whether the employee was treated less favourably or differently than another person in similar circumstances, and the treatment was based on age, either directly or indirectly.  

That is a reasonably high hurdle to overcome, and one Ms Ritchie would not have. 

Employees who believe they have been discriminated against due to age can choose where to commence a claim.  

A complaint can be made to the Human Rights Commission, which may lead to mediation or proceedings before the Human Rights Review Tribunal. Remedies can include compensation, reimbursement, or the Human Rights Commission can send someone to the employer to provide training on the application of the Human Rights Act.

The alternative pathway is to raise a personal grievance, which could end up in the Employment Relations Authority, which can result in remedies such as compensation, reinstatement, or reimbursement.  
Traditionally, while it can take a significant period of time to get a hearing and decision from the Human Rights Review Tribunal, remedies can be significantly higher.

Why does this matter?

NZ workplaces are increasingly multi-generational and open-plan, and I think this case offers a timely reminder for employers and employees of all ages to think about how to work constructively together, understand each other’s different ways of working, and that sometimes quiet time in an open plan is important!  

As always, I believe that effective communication and a shared understanding are crucial for working successfully in an open plan and avoiding allegations of noisy, chatty, or loud colleagues who don’t work hard enough.  

Whichever side of the fence you are on, open plan is here to stay, and we all need to work together to make it work and be considerate of different ways of working.

Having some clearly articulated guidelines to consider when working in an open plan is a good idea.  

This could include things such as watching the volume of conversations and where you are having them (not everyone needs to know what you did on the weekend), keeping a neat and tidy workspace, having long conversations in a quiet room or office, being respectful of colleagues and communicating openly about how you want to work.

And it seems, most importantly, headphones are your friend; an investment in a good pair of noise-cancelling headphones is definitely the way forward. 

Get in touch

If you need advice on a similar situation in your workplace, please get in touch.