“I’m not bald, I’m… follicularly challenged! I suffer from premature Kojakulation!” Jasper Carrott may have thereby brushed aside a visible sign of his advancing years, acknowledging his long forgotten hirsute Funky Moped days. However, laughter was evidently not the best medicine in a recent tribunal case where the media latched onto the alleged remark “I don’t want a team of bald-headed 50-year-old men – I want to change the dynamics”. What was all that about? 
In Jones v Tango Networks, Mark Jones succeeded in a claim that he had been unfairly constructively dismissed at the age of 61 in a “cart before the horse” scenario, where his employer decided he needed to go and then fabricated a performance management process. The lessons for responsible employers here need no further explanation. It may be noted that the comments of his line manager Philip Hesketh about needing “high energy, energetic and youthful” team members were not in their own right sufficient to damage the necessary trust and confidence in the employment relationship, but they chipped away at it. 
Mr Jones’ claims did not stop there. He alleged direct age discrimination and harassment. The contrived performance management process, against a smoking gun background where the employer evidently sought to withhold significant damaging evidence, was found to have been influenced at least in part by Mr Jones’ age. The legal reversal of the burden of proof left Tango unable to show that those detriments were not so influenced. Everything connected with the constructive dismissal was tainted by age discrimination
As to harassment – whether violation of dignity or creation of a hostile environment – this was where Mr Jones sought to rely upon numerous alleged comments related to age. Curiously, they played no part in what eventually found itself reflected in an award of £20,000 for injured feelings (alongside a substantial compensatory award for unfair dismissal). The comments that evidently included “high energy, energetic and youthful” and not wanting “a team of bald-headed 50-year old men” did not cross the line into harassment. 
Ironically, in the context of Mr Hesketh’s evidence being preferred on one occasion of conflict, one comment being “a lot of the candidates…were a mirror image of me, white middle aged men…a shame we did not attract more diversity into the application process”, the media noted that Mr Hesketh was himself bald. Mr Jones’ appearance was not mentioned. Whether this is another instance of a claim being embellished via the unreasonable taking of offence, or of an employer indirectly paying the price for comments that have become unacceptable in the modern workplace, may be a matter of taste. Either way, it is not something to ignore or brush under the carpet. 
Do you need help in recognising the wider pitfalls of performance management? Especially when your target employee is older than the average, and may have other causes of action? Or are you the employee in that iniquitous position, looking for scope to fight back? 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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