Senior executive called ‘old fossil’ by boss was victim of age discrimination, tribunal finds

Claimant was also victimised and unfairly dismissed after being sacked without undergoing a formal performance management process

A senior executive at a FTSE 250 firm was a victim of age discrimination, unfair dismissal and victimisation after being sacked without warning and replaced with a younger employee, a tribunal has found.

The London Central employment tribunal (ET) found that age was “one of the factors” that led Glenn Cowie – who had been global business unit president of the Foseco division of metal engineering and technology firm Vesuvius since 2014, and was 58 at the time – to be dismissed.

It also found that Cowie was not subject to a proper dismissal process and, had he been in his forties, would likely have been treated more favourably.

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On 5 February 2018, during a week-long group executive committee meeting in Brazil, company CEO Patrick Andre addressed the firm’s senior managers, making the comment: “These millennials will never stop until they have my job and you older guys had better get used to it.”

On 12 February, after the meeting, the claimant made a diary entry noting that Andre had given him a 45-minute lecture in which he called him an “old fossil” and said that he “did not know how to deal with millennials”.

The tribunal noted that the claimant had previously pushed for young engineers to be recruited straight from college in every plant around the world, as part of a campaign started in 2015 and dubbed ‘Project Excalibur’, due to the fact that a set of managers were retiring at the same time without potential successors.

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In a letter to Cowie dated 9 May 2018, Andre confirmed there would be a push for candidates with a maximum age of 45 years old. He also said in various meetings in 2018 that the organisation needed to “get younger”, or words to that effect, and during 2017 and 2018, Cowie had been given personal objectives to dismiss four senior executives, all of whom were high performers and aged between 45 and 62 years old.

According to Andre, this was so that they would be replaced with candidates with a “more international outlook”. Cowie was uncomfortable with these instructions and ultimately did not fulfil them.

During 2018, Cowie had been set “unfair and arbitrary business targets”, which were difficult to achieve in the face of a market downturn and rising material costs. This also risked the company losing clients and would reduce the market share, which the claimant would have been accountable for.

On 23 May, despite the fact that Cowie is a US citizen and had been based in Cleveland, Ohio, Andre told Cowie that his role had been relocated to Europe, and that he had to move to the UK. According to Andre, he was told that this would be for a six-month period until his performance improved, and that Cowie accepted this. However, Cowie denied this and said he would never accept it without consulting his wife.

Cowie was reluctant to accept because he had been settled in Ohio with his family, and had “serious medical reasons” to stay in the US, which were not disclosed to the tribunal. However, he moved to the UK on 17 October, incurring relocation costs of approximately £274,000, which the firm promised to reimburse him for.

On the same day as the move, executive search agency Egon Zehnder was engaged in an “initial talent mapping” exercise, with the aim of finding a potential replacement for Cowie.

In an email to the claimant dated 17 November 2018, Andre noted his improved performance since moving to the UK, and commented that the “restructuring is progressing as planned”.

Despite this, in February 2019, Andre made the decision that he would terminate the claimant’s employment, and on 19 March instructed Egon Zehnder to find a replacement for his role. In July, his replacement, Karena Cancilleri, who was 51, signed her contract with Vesuvius.

He did not discuss this decision with Cowie until 1 August, when he informed him of his dismissal. According to Andre, it would have “been disruptive to the division of which the claimant was president” if he had been notified of his dismissal beforehand. 

On 2 September, Cowie was placed on garden leave for six months, and on 1 October, he submitted a grievance, in which he alleged age discrimination and an “anti-American stigma” within the company.

He also claimed that he signed the UK contract “under duress” before his move the previous year. The tribunal found that this letter contained protected disclosures. The grievance was investigated by CHRO Agnieszka Tomczak, who concluded that it was “rare” for senior executives such as Cowie to be put through a formal performance management process, and that he was dismissed for issues including “unsatisfactory results” and an inability to provide the “required leadership”.

According to the claimant, Andre did not explore any alternatives to dismissal, such as redeployment, and in February 2020 he wrote to Andre highlighting several unfilled positions that would be suitable. Despite this attempt, his employment came to an end on 1 March. After submitting an appeal, he brought his claim to the employment tribunal on 12 May.

The tribunal found that because of the fact that the claimant was “never subject to a formal performance process”, and was not given an “advance written notification of a possible dismissal and the reasons for it”, dismissal fell outside of the range of reasonable responses. Using a hypothetical comparator, it found that had the claimant had been in his forties, he would have experienced “more patient treatment” from Andre.

It also found that there was a failure to properly investigate the allegations in the letter submitted on 1 October, and that the claimant was victimised.  

Andreas White, employment partner at Kingsley Napley LLP, said that the case should warn managers to be “very careful in their language”,  and called for a change of culture where employees are assessed on their performance, skills and expertise regardless of their age.

“It’s been over 15 years since age discrimination was outlawed in the UK, yet the sort of ageist attitudes and comments in the workplace that occurred here remain far too common… ageist discriminatory remarks, whether applied to older or younger members of the workplace, should be challenged.” he said.

“The fact that in this case, the ‘old fossil’ remark came from the CEO, only serves to illustrate the scale of the problem,” he added. “Any such comments can be relied on in evidence to demonstrate the culture of an organisation, particularly when used by C-suite executives.” 

Julian Hemming, employment law partner at Osborne Clarke, said that the “complex” case shows that employers “need to focus on the protected characteristic of age as part of their diversity and inclusion programme”. 

“With the birth rate dropping, we have an ageing workforce which is subject to a lot of stereotyping including around succession and access to opportunities, which will expose employers to an increasing risk of claims" he said.

"In cases where comments like this are directed at an individual, and they have the purpose of violating the person's dignity, nothing more is required – this will amount to harassment,” he added.

If a comment is a general statement not directed at an individual, however, then the outcome may be different: “If a comment is made without intending to offend and the individual is 'hypersensitive’, there may be no harassment,” he said.

Vesuvius plc and Cowie have been contacted for comment.