“What is the name of the directory that lists members of the peerage?” “A study of old fossils.” “Correct…” 
With this passing recollection of the celebrated Two Ronnies’ Mastermind sketch, its specialist subject being “answering the previous question”, let us look at the recently reported tribunal decision Cowie v Vesuvius Plc & others. The mainstream press had latched onto this judgment, with headlines such as “executive wins age discrimination case after being called ‘old fossil’ unable to manage millennials”. 
However, this particular point was of less relevance to the tribunal than it was to the press. In matter of fact tones, the tribunal judgment simply stated “we find that Mr Andre [Vesuvius’ CEO] did say that the Claimant [Mr Cowie] was an old fossil and did not know how to deal with millennials, and then went on to say ‘old fossil me’ as well.” For context, Mr Cowie was then in his late 50s, and Mr Andre’s age was not confirmed. 
The background to Mr Cowie’s dismissal, as Mr Andre had it, was that Mr Cowie had been made well aware that he was underperforming and on a 6 month performance management deadline, on pain of “consequences”. Mr Cowie was adamant that he had been told nothing of the kind. Little did he know that his successor had already been offered terms of employment behind his back. 
The conclusion drawn by the tribunal was that “loss of confidence”, held out as a basis for fair dismissal, rang somewhat hollow in this case. The test “some other substantial reason” meant exactly that. It would have to be plain and obvious that the alleged loss of confidence had some substance behind it, before it could stand any chance of justifying dismissal. In reality, Mr Cowie’s dismissal had been based on a poor performance allegation that did not stand up, whether on procedural or substantive grounds. 
Back to the “old fossil” comment. Sadly for Mr Cowie, the claim for age related harassment was out of time, and he was not allowed a waiver of the time limit. However, the tribunal was willing to conclude that this comment was directed at him personally, did create an “intimidating and hostile environment” for Mr Cowie, was unwanted, and related to age. Evidently there was no scope for the company to argue that this was a mere spoken word comment comprising nothing more than workplace banter that was over and done with in less than a minute. More importantly, it was said to comprise important background for other age discrimination claims that were in time, notably for the tribunal’s key conclusion that the decision to dismiss was unlawful age discrimination
On the one hand, the outcome of this claim was fact specific, and saw an employer brought to book for operating a recruitment and promotion policy that went beyond legitimate succession planning. On the other hand, it further illustrates that the days of looking to lighten a serious workplace moment with a touch of humour, as may have been Mr Andre’s sole intention here (or may not, of course), may have to be accepted as long gone. 
Are you facing a grievance that involves a workplace comment, and the taking of offence? Or something more serious than a grievance? Or are you the one on the receiving end of something not remotely jovial? Get in touch and we’ll see if we can help. Contact David Cooper via dmc@coxcooper.co.uk or on 0121 325 5402. 
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