Employment Advice

Age Discrimination in Employment

Employment Tribunal cases around race and sex discrimination are, unfortunately fairly common. Cases relating to age discrimination are a rarer beast and so it was with interest that we read the recent decision of the Employment Tribunal in Cowie -v- Vesuvius Holdings Limited (and others).

16 Mar 2022

Team name
Esther Marshall

Esther Marshall

Mr Cowie, 58, was employed by Vesuvius as a Global Business Unit President, having worked his way up through the company for many years. At a meeting in 2018 he was told by the CEO that he was “an old fossil” who “didn’t know how to manage millennials”. In 2019 Mr Cowie was dismissed on notice, on grounds of poor performance. He appealed against his dismissal, and lodged a grievance, neither of which were upheld. Mr Cowie’s replacement was seven years his junior.

In a Judgment which runs to 75 pages, the Tribunal recounts a working environment in which employees in their early 50s were seen as “seasoned” members of staff ready for their “last campaign”. There was a policy within the business that younger candidates (“young blood”) should be sought for management roles and it was alleged that there was a 45 year maximum age for those roles.

The Tribunal found that the reason for Mr Cowie’s dismissal was his age, rendering the dismissal unfair and discriminatory. There will be a separate remedy hearing to determine the level of compensation to be paid by Vesuvius – given Mr Cowie’s senior role and commensurate salary, this is likely to be substantial.

M&P Commentary

Esther Marshall, Senior Associate in the Dispute Resolution team, said:

“This case highlights how an employer’s drive for innovation and “fresh blood” was in fact an act of discrimination against a senior employee. Employers should recognise that older employees often have a wealth of experience and other qualities which can be real assets. Use of terminology which perpetuates the myth that older employees cannot also be dynamic or innovative is likely to be discriminatory.

Employers should make sure that their recruitment practices don’t discriminate against older candidates, and that there is no attempt to phase out more senior staff members in favour of younger candidates.

Age discrimination is often overlooked by employers – a review of your staff handbook / equality and diversity policy could head off any potential issues before they arise.”

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