• Robert Spicer

Redundancy law and practice - Part 8

Updated: Jan 10

REDUNDANCY & DISCRIMINATION

Age Discrimination

Kirk v Citibank 3200291/2018, East London Employment Tribunal

Facts Citibank made K redundant from his post of chair and managing director of the bank’s energy and natural resources division for Europe, the Middle East and Africa. A senior manager allegedly told him that he was old and set in his ways. K argued against the redundancy and complained that the consultation exercise had been a sham. He was dismissed in February 2018 and claimed age discrimination and unfair dismissal.

Decision 1. The claim of age discrimination was upheld. The provision of information which resulted in his dismissal was directly linked to his age.

2. K had been unfairly dismissed. He was not given notice of a proposed reorganisation until after the decision to dismiss him for redundancy had been made.

3. There had been no meeting with K to discuss alternative roles nor did the employer approach K’s responses to the consultation exercise with an open mind.

Palmer v Royal Bank of Scotland plc UKEAT/0083/14/MC

RBS operated a VER (Voluntary Early Retirement) policy. This allowed employees over the age of 50 to take VER. RBS then decided to change the policy so that only employees over the age of 55 could choose VER. RBS announced that it would be making redundancies and deferred the change in the VER policy. Employees who were at risk of redundancy, including P, had already decided between VER, voluntary redundancy or redeployment. RBS allowed employees between the age of 50 and 55 to change their decision and opt for VER instead. P had opted for voluntary redundancy at the age of 49 and did not qualify for VER. She argued that she should be allowed to change her mind and choose redeployment instead, in the hope that the redeployment process would take long enough for her to reach the age of 50 so that she could then opt for VER. RBS did not allow her to do this. She complained of age discrimination. The complaint was dismissed by the employment tribunal. She appealed to the EAT.

The appeal was dismissed.

The tribunal had been entitled to conclude that less favourable treatment had not been established. P’s comparators could lawfully have chosen VER but P, at her projected date of leaving employment, could not.

The tribunal had correctly identified a legitimate aim on the part of RBS and had decided that the means of achieving it were appropriate. It had not sufficiently balanced the importance of achieving the aim against the discriminatory group, of which the claimant was part, of being denied the chance to revisit their options after the delay in making the adjustment to the policy on VER.

Demosthenous v Sosa Factory Ltd (2016) Eq Opp Rev 272:24, Watford ET

D was dismissed for redundancy at the age of 67. She complained of age discrimination.

The ET found as follows:

  • In the absence of any evidence of redundancy, the burden of proof on the claim passed to the employer.

  • The claim succeeded.

  • No proper procedure had been followed by the employer.

  • In relation to comparators, two employees aged 58 and 60 were proper comparators despite the narrow difference in age, because D’s age group was those entitled to draw state pension whereas the comparators were not.

Injury to feelings award: one off act: serious matter with substantial effects: £5000 plus £552 interest plus reimbursement of tribunal fees.

Pregnancy/maternity dismissals

Redundancy dismissal because of pregnancy or maternity is automatically unfair. No minimum qualifying period of continuous employment applies.

A woman who is made redundant during maternity leave must be offered any suitable vacancy.

Case Examples:

Sefton Borough Council v Wainwright [2015] IRLR 90, EAT

Statute reference: Maternity and Parental Leave etc Regulations 1999, regs. 10, 20; Equality Act 2010, s.18

SBC carried out a restructuring process. This resulted in two posts being made into one, which meant that either W or her colleague would be appointed to the new post. W was on maternity leave in July 2012 when interviews for the post were carried out. W was unsuccessful. She was made redundant in April 2013. She complained of direct sex discrimination and automatic unfair dismissal. The ET found that regulation 10 of the 1999 Regulations applied. This gave W the right to special treatment in that, where there is a suitable available vacancy, it must be offered to a claimant on maternity leave. A failure to do so renders a subsequent dismissal automatically unfair. W had also suffered direct sex discrimination. SBC appealed to the EAT.

The EAT ruled that the dismissal had been automatically unfair.

The direct discrimination claim would be remitted. The fact that regulation 10 of the 1999 Regulations applied did not necessarily mean that there had been direct sex discrimination.

SBC had paid £400 to lodge the appeal and £1200 for the hearing. W was ordered to pay the £400 and half the hearing fee – a total of £1000.

Race discrimination

This may arise where retained white workers score equally or worse than black, Asian or other ethnic minority workers.

Case Examples:

Base Childrenswear Ltd v Otshudi UKEAT/0267/18/JOJ

O, an employee of C, was made redundant. She stated that the real reason for her selection for redundancy was her race. At a meeting she was intimidated by managers. She appealed against her dismissal and lodged a grievance. Both were ignored. C refused to engage in the ACAS early conciliation process. She complained of race discrimination. The ET upheld the claim and made the following awards:

  • £16,000 for injury to feelings (middle Vento band).

  • £5000 aggravated damages for failure to respond to the grievance and appeal, subsequent conduct of litigation and failure to apologise.

  • £3000 for personal injury (depression).

  • A 25% uplift for breach of the ACAS Code.

C appealed to the EAT. The EAT decided that the injury to feelings award was appropriate. The aggravated damages award was reduced by £1000 to avoid double counting with the 25% uplift.

Sex Discrimination

Dykes v Premier Risk Service LLP (2014) Eq Opp Rev 253:30, Leeds ET

D was employed as a part-time health and safety expert. Her employing company carried out a restructuring exercise which involved the abolition of D’s job. She was given the opportunity to apply for a full-time post, but she was unable to apply because of childcare responsibilities. She was made redundant and complained of unfair dismissal and direct and indirect sex discrimination.

The decision of the ET was as follows:

1. There was no direct discrimination. D was made redundant because she did not apply for the full-time post and not because she was a woman.

2. There was a provision, criterion practice (PCP) of requiring employees to work full-time. This put women at a disadvantage.

3. The employer’s reasons for deleting the part-time post were based on stereotypical and prejudiced assumptions about part-time workers.

4. In the absence of evidence of a need for a restructuring which resulted in the part-time post being deleted, the claim of indirect sex discrimination was upheld.

Geller and Geller v Yeshurun Hebrew Congregation (2016) Morning Star, August 19, EAT

Mr G was employed by YHC in 2011. A year later his wife started working for YHC on an ad hoc basis. YHC later suggested that the couple should be paid a joint salary. This was accepted.

In 2013 it was decided that Mr G would be made redundant. Before he was informed of this, he told his employer that his wife was pregnant. Mrs G stated that she should also be considered for redundancy. Both were made redundant at the end of 2013. They lodged a number of claims in the employment tribunal including sex discrimination in that YHC had failed to treat Mrs G as an employee and had failed to pay her properly. The claims were dismissed on the basis that YHC had not treated Mrs G less favourably because of her sex but because it genuinely believed that she worked for them on an ad hoc basis. Mrs G appealed to the EAT.

The matter was referred back to the tribunal for reconsideration.

The tribunal had overlooked the important point that discrimination can be conscious or subconscious.

The tribunal had failed to go through the two-stage burden of proof test in section 136 of the Equality Act 2010. Its treatment of the test had been rudimentary. There were primary facts from which discrimination could be inferred. At that stage the burden of proof would have shifted and it would have been for the employer to demonstrate a non-discriminatory reason for treatment.

Haynes v Neon Digital (Document Solutions) Ltd and Others (2012) EqOppR224:30, Bury St Edmunds ET

H was dismissed from her employment with N shortly after S, the managing director of N, was informed that she was pregnant. She was told that the reason for her dismissal was redundancy. She complained of unfair dismissal and sex discrimination.

The ET found as follows:

S was not a credible witness. His general attitude to female employees was sexist and he commented on the size of H’s breasts. S told her to “grow a pair of balls”. It was not a coincidence that H was put on notice of redundancy and dismissed shortly after S learned of her pregnancy.

S’s comments and conduct amounted to direct sex discrimination and harassment. They created an environment which was intimidating, hostile, degrading, humiliating and offensive.

H was awarded £11,000 for injury to feelings, based on the middle Vento band because there was a continuing course of conduct.

S’s solicitors had sent a letter to H demanding £26,000 compensation to recover recruitment costs to replace another employee who had left the company. The tribunal stated that this was an act of intimidation and awarded £3000 aggravated damages.

Indirect discrimination: selection criteria

Whiffen v Milham Ford Girls’ School: W had been employed by M for five years on a series of fixed-term contracts. Her contract was not renewed when M applied a redundancy selection procedure. The procedure made temporary workers redundant first and then applied the selection procedure to permanent staff. W claimed indirect sex discrimination on the basis that 77 per cent of women teachers were permanent employees but 100 per cent of male teachers were. The ET found that a smaller number of women could meet the requirement of permanent employment necessary to come within the selection criteria. However, this policy was justified because the redundancy policy was gender-neutral. On appeal to the Court of Appeal, that court overturned this decision. Indirect discrimination is intended to go beyond a requirement which, on the face of it, is gender neutral, to consider the effect of that requirement in any particular case.

Unjustified selection of a part-time worker for redundancy would now be a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

Case Examples:

McFarland v Kincull Ltd (2016) Eq Opp Rev 273:23, Industrial Tribunal of Northern Ireland

M was employed by K from 2004 until 2014 when she was dismissed for redundancy aged 47. Her dismissal followed discussions as to possible redundancy. A new post was created and M was excluded from applying because it was a requirement that candidates were educated to degree level. M complained of indirect age discrimination on the basis that people of her age were particularly disadvantaged because they were less likely to be educated to degree level than younger people.

The complaint was upheld.

Statistics showed people aged 45 to 54 were less likely to be graduates and were therefore put at a particular disadvantage.

The criterion was not objectively justified because the employer could not show that it had carried out the required objective balance between discriminatory effect and the needs of the business.

The legitimate aim for the new role could have been achieved, without the necessity for a degree, by other means such as experience.

Rolls Royce plc v UNITE the Union: R entered into collective agreements with UNITE which stated that the selection criteria for redundancy would be achievement of objectives, self-motivation, expertise, versatility and personal contribution to a team. Each worker would also receive one point per year of continuous service. R took the view that the long service award amounted to unlawful age discrimination because it benefited older workers. UNITE argued that the award could be objectively justified and fulfilled a business need.

The Court of Appeal found that the long service award was lawful provided that it reasonably appeared to R that the criterion fulfilled a business need. Further, even if the award was indirectly discriminatory, it could be objectively justified. The legitimate aim was the reward of loyalty and the overall desirability of achieving a stable workforce in the context of a fair redundancy selection process. Proportionality was achieved by the fact that length of service was only one of a substantial number of criteria.

Disability

Disabled workers may be selected for redundancy because of the employer’s failure to make reasonable adjustments to allow for their disability. The disabled may be disadvantaged in selection criteria in relation to issues such as mobility and sickness absence. Employers have a duty to modify selection criteria to make reasonable adjustments.

In relation to disabled workers, employers should take additional measures to seek alternative employment.

Public authority workers should carry out an equality impact assessment before deciding on selection criteria.

McCorry and others v McKeith [2017] IRLR 253, Northern Ireland Court of Appeal

M was employed as an advice assistant. She had a disabled daughter who was looked after by a family friend while she was at work. Her employer thought that M’s place was at home. She was told, against her wishes, to be absent from work for some periods to care for her daughter. M was later dismissed for redundancy. She complained of associative direct disability discrimination. The industrial tribunal found that she had established a prima facie case that she had been discriminated against because she had been the primary carer of her disabled daughter. The burden of proof therefore shifted to the employer which had not put forward any convincing or coherent explanation for its decision to make her redundant. The employer appealed to the Northern Ireland Court of Appeal.

The appeal was dismissed.There was evidence of a difference in status, a difference in treatment and a reason for differential treatment. In the absence of an adequate explanation, a tribunal could conclude that the employer had committed an unlawful act of associative disability discrimination.

X v Y Ltd (2018) UKEAT 0261-17-0908

X suffers from Type 2 diabetes and obstructive sleep apnoea. His employers had concerns about his performance. He complained of disability discrimination. He received, anonymously, an email from a lawyer to another lawyer which set out how to use a redundancy procedure to dismiss X, when in reality it was a cloak for dismissing him for performance and sickness issues. X wished to use the email in his complaint. The ET refused to admit it on the basis that it was legally privileged. X appealed to the EAT.

The appeal was allowed. The email could be used in ET proceedings. Advice sought or given for the purpose of iniquity could not be privileged. The advice in the email was an attempted deception of X and of the ET. The iniquity in the email was to disguise acts of victimisation or discrimination as a redundancy dismissal.

Russell v College of North West London [2014] Eq Opp Rev 252:28, EAT

R suffered from Meniere’s disease (a disorder of the inner ear) and was accepted to be a disabled person. She was selected for redundancy when the Bradford Score (a scoring mechanism) showed that she had the highest sickness absence in her pool. She complained of unfair dismissal, disability discrimination, victimisation and harassment. The ET dismissed all the complaints except for unfair dismissal. The tribunal found that she had been unfairly selected because the scoring mechanism was fatally flawed. It applied an 80% Polkey deduction. R appealed to the EAT.

The EAT ruled that the selection criteria were applied equally to disabled and non-disabled employees. R had been selected for redundancy not because of her disability but because of her level of absence.

Even if all disability-related absences had been ignored, R would still have been dismissed because the level of her non-disability related absence was also higher than that of the next most absent employee.

Charlesworth v Dransfield Engineering Services Ltd (2017) Morning Star, July 28, EAT

C was employed by D as a branch manager. In November 2014 it was decided that his job could be deleted and that this would save D £40,000. C was diagnosed with renal cancer and was off work sick from October to December 2014. In 2015 C was given four weeks’ notice and dismissed for redundancy. C complained of direct disability discrimination and discrimination because of something arising in consequence of his disability. The ET rejected the claims. It found that D would not have treated someone without a disability differently from the way in which C was treated. D needed to make savings and the redundancy had nothing to do with his disability. C had not been dismissed because of his absence. C appealed to the EAT.

The appeal was dismissed.The ET’s decision that the Claimant’s absence resulting from his disability was not an operative cause of his dismissal for redundancy was reached without error of law or perversity.

Balson v Foray Motor Group Ltd UKEAT/0288/16/RN

B was disabled because of depression. He was made redundant following his scoring the least number of points in a redundancy exercise. He complained of disability discrimination in that he had suffered unfavourable treatment in his scoring and dismissal and that his ability to score well was adversely affected by his depression. The ET dismissed the claim. He appealed to the EAT, arguing that the tribunal had erred in preferring the evidence of the employer’s witness and B’s manager.

The appeal was dismissed. The reasoning of the ET had been sound and did not disclose any error of law.

JP Morgan Europe Ltd v Chweidan [2011] IRLR 673, CA

C was employed by JPM as an executive director. In 2007 he suffered a serious back injury. He returned to work for restricted hours. C complained that his 2007 bonus had been reduced because of his disability. He was dismissed for redundancy and complained that his selection for redundancy had been because of his disability. The employment tribunal found that he had been unfairly dismissed and subjected to direct disability discrimination. JPM appealed to the EAT and then to the Court of Appeal.

The Court of Appeal found that the tribunal’s decision in relation to direct discrimination could not stand. A non-disabled person would similarly have been dismissed.

IPC Media Ltd v Millar [2013] IRLR 707, EAT

M was employed by IPC as a journalist. She suffered from osteoarthritis. She was made redundant following a company restructuring. She was not given the opportunity to apply for two vacancies for which the ET considered she was potentially appointable. She complained of disability discrimination. The ET ruled that the failure to give her the opportunity to apply for the vacancies was because of her absences caused by her disability and was discrimination arising in consequence of disability. IPC appealed.

The appeal was allowed.There was no evidence that the relevant decision maker was aware of M’s absence history. There was no evidential basis for the burden of proof to have shifted.

Redcar and Cleveland Primary Care Trust v Lonsdale [2013] Morning Star, October 4, EAT

L was employed by C in a band six position. Her eyesight deteriorated and she was registered blind. She was assessed by occupational health and redeployed into a band four post. C underwent a restructuring exercise. L was told that her band four post was at risk of redundancy. She asked if she could apply for a band six post. This was refused and a disabled colleague was appointed to the band six post. L complained of disability discrimination, including a failure to make a reasonable adjustment because C had not allowed her to apply for the band six role. The ET found that C had failed to make a reasonable adjustment. C appealed to the EAT.

The appeal was dismissed.

L had suffered a substantial disadvantage when she was redeployed from a band six to a band four post as a direct result of her visual impairment. That was the reason she was precluded from applying for the band six role.

By failing to allow L to apply for the higher-grade post, the employer had not taken into account that disabled employees can sometimes be treated more favourably than those who are not disabled.

References:

Whiffen v Milham Ford Girls’ School [2001] IRLR 468, CA

Hampson v Department of Education and Science [1990] IRLR 302, HL

Rolls Royce plc v UNITE the Union [2009] EWCA Civ 387

R v Hammersmith & Fulham LBC ex p NALGO [1991] IRLR 249, DC

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