Was a senior executive who was called an “old fossil”, told he didn’t know how to deal with millennials and ultimately dismissed and replaced with someone younger subjected to age discrimination?
Cowie v Vesuvius
In 2014 Glenn Cowie (58) joined Vesuvius, a FTSE 250 firm, as their global unit president of the Foseco division of metal engineering and technology. Within this role he reported directly to the company’s CEO, Patrick Andre.
Mr Andre was promoted to CEO in 2017. Within Mr Andre’s first year in this position Mr Cowie was instructed to dismiss four individuals holding senior management positions. Mr Cowie claimed that all these individuals were between the ages of 45 and 62 and that the company had personal objectives to find new “younger talent”.
Shortly after the dismissals Mr Cowie attended a Group Executive Committee (GEC) meeting with Mr Andre in Brazil. Within this meeting, Mr Cowie claimed that Mr Andre commented that “these new millennials will never stop pushing until they have my job and you older guys have to get used to it”. In addition to this, and following the meeting, Mr Cowie claimed in a personal diary entry that he “received a 45-minute lecture (from Mr Andre) that I was an “old fossil” and did not know how to deal with millennials. [Mr Andre] realised what he had said and then said, “old fossil” to me as well.”
A few months after the GEC meeting, Mr Cowie was informed by Mr Andre that the company now had “a strong confirmed push for a max 45-year-old limit on candidates”. This direction was also reiterated in several other meetings in 2018 where Mr Andre stated that the organisation needed to get younger, or words to that effect.
Since joining the company in 2014, Mr Cowie was based in Ohio; however, after being set targets to which he claimed were “unfair and arbitrary” and difficult to achieve in the face of a market turndown and rising material costs, Mr Cowie was relocated to the UK. Mr Andre stated that the relocation would be for a six-month period until his performance improved; however, Mr Cowie denied this was the case.
Mr Cowie relocated to the UK with the help of the company. A month after his relocation Mr Andre noted Mr Cowie’s improved performance commenting that the “restructuring [was] progressing as planned”. Despite this comment, in February 2019, Mr Andre made the decision that he would actively seek a replacement for Mr Cowie. This replacement was found in July with Karena Cancilleri, who was 51.
This decision was not discussed with Mr Cowie until August 2019, when he was informed of his dismissal. Mr Andre tried to justify the delay by stating it would have “been disruptive to the division of which the claimant was president” if he had been notified of his dismissal before that time. Mr Cowie was consequently placed on garden leave in September and raised a formal grievance with the company in October 2019, claiming age discrimination and an “anti-American stigma” within the company.
Mr Cowie brought claims against the company claiming that, amongst other things, he was a victim of age discrimination, unfair dismissal and victimisation.
Many of Mr Cowie’s claims were struck out on the basis they had been presented outside the statutory time limits for the respective claims. The Tribunal did, however, consider the claims of unfair dismissal, age discrimination and victimisation in detail.
Regarding the claim for unfair dismissal, the Tribunal considered that the reason, or principal reason, for Mr Cowie’s dismissal was performance; however, the absence of a meeting or advance written notification of a possible dismissal and the lack of warnings rendered the dismissal unfair.
On age discrimination, the Tribunal ruled that the policies imposed on the wider company i.e., recruiting only under 45-year-olds for management roles, coupled in particular with the CEO’s comments, sufficiently confirmed that age was one of the factors which lead to Mr Cowie’s dismissal. A manager in a similar position to Mr Cowie in all material respects other than being in their 40s rather than 58 would have experienced more patient treatment from Mr Andre and would not have been dismissed. The age discrimination claim therefore succeeded.
Mr Cowie had raised grievance allegations of age and race discrimination, which together with his appeal were not dealt with by the board. There was no justification for this and no proper investigation into the allegations. The Tribunal concluded this was a result of the nature of the allegations raised, consequently leading to further detrimental treatment as a result of a protected act. The Tribunal ruled that Mr Cowie was victimised.
The age discrimination and victimisation rulings in particular highlight the importance of employers being careful with their language and also ensuring that they dispose of discrimination allegations appropriately. Failing to investigate on the basis that the company simply doesn’t want to deal with discrimination allegations will usually result in a victimisation finding, which in turn is likely to augment any injury to feelings award.
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This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.