There are fewer and fewer among us who can stretch their minds back to 1984 and the first viewing of the original Ghostbusters in cinemas. When Sigourney Weaver, possessed by a nymphomaniac demon asks Bill Murray ‘Do you want this body?’ He rather wittily sidesteps with ‘Is that a trick question? I make it a rule never to sleep with patients!’ However, after a further advance he weakens to: ‘Well, it’s more of a guideline than a rule.’ And who could blame him?
All very interesting, no doubt, but what is the relevance to Employment Law?
Well, funny you should ask…
At about the same time that movie first came out, Glen Cowie joined Vesuvius, a metallurgical business dedicated mainly to the automotive and aerospace industries. He diligently worked his way up the ladder of this huge organisation (11,000 employees in 60 sites around the world) until he was a senior executive on a basic of £300k a year, but with a bonus structure described as ‘much more generous’. All in all a heart-warming story of local boy made good. But alas, there is also a villain in this piece.
In 2017 Patrick Andre, up until then a contemporary or homologue of Mr Cowie was appointed CEO. A man with ideas, one of which has rather spectacularly backfired.
At a senior meeting in Brazil in 2018 Mr Andre stated that ‘you older guys’ had no idea on how to manage Millenials, and that Mr Cowie was ‘an old fossil’. Following this meeting Mr Andre emailed Mr Cowie pushing for a policy that new recruits all be under 45. At the Tribunal – and not before – a suggestion was made that this was merely a guideline to help in succession planning for the business. That garnered about as much enthusiasm as one would imagine – there is no succession planning exception in the Equality Act.
One wonders if Mr Andre’s advisors were asleep at the wheel, or indeed had any knowledge of his brave new policy. It frankly beggars belief that in such a large, well-resourced organisation, this daft new rule – sorry, guideline – raised no red flags with anyone.
His Personal animus to the Complainant apparently further surfaced at a board meeting where he claimed – without evidence – that Mr Cowie was underperforming and had six months to improve, or he’d be dismissed. Rather unfortunately, no-one passed this news to Mr Cowie, who, one would have thought, should indeed have been informed. That such a long serving and successful employee should take a performance nosedive is not unknown, but it is extremely rare and is rather more commonly discovered as an excuse to remove an individual for another reason, or reasons. Speculation aside, Mr Andre documented his decision to sack Mr Howie in February of 2019, but neglected to tell him until 1 August when he plunged in the knife.
At the time, Mr Cowie was 58 and was replaced by Karena Cancilleri, 51. Aha! Quoth Vesuvius, or something like it, that she was 51 proves that they did not adhere to a rule to recruit only those under 45, and it was ‘more of a guideline’, in the immortal words of Mr Murray. The Tribunal was unconvinced. According to Judge Adkin ‘The policy about recruiting under 45 years was something very close to a rule across whole levels of management’ before concluding that the dismissal was unfair, and that Mr Cowie had suffered discrimination and victimisation.
That is one Remedies Hearing I wouldn’t mind being a fly on the wall for.
So, be careful what you wish for, be aware of the relevant Law and please, please, please listen to your advisors.
And if anyone comes across my 1984 body, can I please have it back?