Age Discrimination – Old Fossils & Millennials

7th March 2022

Despite running into some 75 pages the judgment in Cowie v Vesuvius & Ors makes for interesting reading, especially as direct age discrimination cases tend to be few and far between. The use of words like “old fossil” has brought it to the attention of some national newspapers.

Background

C was a long serving employee of some 40 years for Vesuvius, a listed company specialising in molten metal flow engineering.

After a series of promotions C became Global Business Unit President of Foundry Industries (one of four divisions) based in the USA. C’s salary was £300,000 plus benefits.

C’s boss, Andre, was made CEO in 2017 having previously been a colleague of C.

At a Group Executive Meeting in Brazil in February 2018, Andre told his managers (including C) that millennials were coming for their jobs. The Tribunal concluded he had said… “These millennials will never stop until they have my job and you guys better get used to it.”

At the same meeting C was told he was an “old fossil” who “did not know how to manage millennials.”

On 23 May 2018 C was told by Andre that he needed to relocate from the USA to Europe. As a result, C relocated to the UK with his family at some considerable personal cost.

C moved to the UK in October 2018 and, unbeknownst to him, the company had engaged an executive search firm to find a potential replacement for him. However, it was pitched as a “market mapping exercise.”

By the end of February 2019 Andre had made a definite decision to dismiss C, with the result that the executive search firm embarked on searching for C’s replacement. In the event Andre did not communicate his decision to C until 1 August 2019.

By the end of May 2019 terms of employment had been reached with a female candidate (a replacement for C) who was 51 years old.

On 1 August 2019 Andre told C that his employment was being terminated and he was placed on 6 months’ garden leave.

C brought a number of claims against both the company and colleagues.

The Employment Tribunal Proceedings

The Tribunal focussed on four particular aspects in order to make a finding of direct age discrimination:

1.        The Tribunal found that the comments made by Andre (see above) were indeed said.

2.        The language used by Andre when he dismissed C. Andre had used the words… “ the fit wasn’t there” …. “he wasn’t the right person..” The Tribunal accepted a submission that this kind of language might be used by an employer when they are seeking to justify discriminatory decisions.

3.        Andre had given inconsistent reasons for his justification in dismissing C.

4.        The fact that the company had a policy of recruiting under 45’s for management roles below Group Executive level. The Tribunal found that this policy went beyond legitimate succession planning.

5.        A background of significant management change viewed in combination with the under 45’s policy.

C succeeded in his claims for direct age discrimination, unfair dismissal, whistleblowing, and victimisation against the company. Likewise, with some of his claims against the other Respondents.

A further hearing will take place in May 2022 to assess compensation which is potentially unlimited.

Comments

The Tribunal’s finding of age discrimination was clearly drawing on a number of different factors, however it would appear the Tribunal felt that the Respondents had not discharged the burden of proof by proving that the decision to dismiss C was not based on age. The Tribunal referred to “inconsistencies,” “the inaccuracy of reasons” and “the differences in emphasis” by the Respondents.

As the Tribunal observed, the use of some ageist phrases might no be of any consequence in isolation, however when put into context with its other findings of behaviour/events, they potentially become quite damaging.

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Chris Filor


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