Redundancy

An employment tribunal recently awarded over £50,000 in compensation for indirect age discrimination and unfair dismissal to an employee who successfully claimed that his redundancy scoring was discriminatory on the grounds of age, and that a botched redundancy consultation process had rendered his dismissal unfair.

The employee, N, worked as a senior construction consultant for a major discount supermarket chain. He had over 20 years’ service and was aged in his 60s, making him the oldest member of the team - his two colleagues were in their 30s. N was made redundant in March 2023, due to a restructure which saw a headcount reduction of three to one. The employer used a redundancy selection matrix, which gave scores for experience, knowledge, skills, performance, and disciplinary record. N placed second on the matrix and was selected for redundancy. There was one point between him and his younger colleague who was retained. The crucial difference between them was the lower score N received for the ‘knowledge’ criterion. N had been marked down by one point because he did not have a construction degree or qualification, although neither the criterion nor the guidance suggested qualifications would be a factor. N claimed that he had suffered indirect age discrimination because he had scored lower for not having a degree and pointed to failures in the redundancy consultation process.

The employment tribunal held:

1. Indirect age discrimination: the tribunal upheld N’s indirect age discrimination claim. Including the requirement to have a degree/construction qualification within the scoring of the ‘knowledge’ criterion amounted to unlawful indirect age discrimination. The tribunal took judicial notice of statistical evidence showing that, across the UK population, those aged in their 60s were far less likely to have a degree than those who were aged in their 30s. Including the requirement to hold a degree in the selection scoring caused greater disadvantage to those aged in their 60s when compared to colleagues aged in their 30s. N had suffered that disadvantage when he was scored one point less for not having a degree and this had resulted in his selection for redundancy. Notably, the employer had not sought to objectively justify the inclusion of this qualification criteria in the redundancy scoring exercise.

2. Unfair dismissal: the tribunal also upheld N’s unfair dismissal claim. The tribunal noted a number of significant failures in the redundancy consultation process. Notable failures included: (a) rushed consultation meetings during which the managers were merely “seeking to go through a prescribed script” rather than genuinely consulting with N; (b) the “quite surprising instruction [from HR] to those conducting the assessments to destroy their notes of any scoring” – compliance with this instruction had led to scoring managers struggling to explain their scoring decisions in evidence.

N was awarded over £50,000 in compensation, including an injury to feelings award of a little over £4,000.

The tribunal’s decision is a reminder for employers that:

• Redundancy selection criteria should not be directly or indirectly discriminatory: whilst it is often easy to spot criteria which directly discriminate, it is much more difficult to identify criteria which are potentially indirectly discriminatory. Doing so requires a close examination of the scoring criteria (and any associated guidance) to check if certain protected groups are likely to suffer a greater disadvantage (s19 Equality Act 2010). The new form of indirect discrimination – for those who are not in the protected group but who suffer substantially the ‘same disadvantage’ as the protected group (s19A Equality Act 2010) – may prove even more difficult to identify. Using this example, someone aged in their 30s without a degree might be able to argue that, although they are not aged in their 60s, they suffer from substantially the same disadvantage as N and others in their 60s. If either form of indirect discrimination poses an identifiable risk, consideration ought to be given to whether the offending criteria can be objectively justified as a proportionate means of achieving a legitimate aim. Could the offending criteria be replaced with something less likely to be discriminatory?

• Managers performing scoring need clear guidance/boundaries: in this case, neither the ‘knowledge’ criterion itself, nor the scoring guidance associated with it, expressly mentioned having a degree or construction qualification. Nevertheless, the scoring manager – seemingly off on a frolic of his own – accepted that the key reason he had scored N one point less was because of his lack of such a qualification. Wherever practicable, it is best practice to set clear guidance and boundaries for those conducting redundancy scoring exercises (i.e. what they can and cannot consider) and to have a second ‘sense’ check of their scores by another manager. It is not entirely clear why the scoring managers here were advised to destroy their notes of the scoring exercise – perhaps this was to avoid the rationale being revealed in data protection subject access requests – but, as this case clearly illustrates, the tribunal were heavily critical of the employer’s decision to do so. The reverse burden of proof in discrimination claims means managers conducting redundancy scoring may need to clearly articulate and defend their decisions before a tribunal to prove no discrimination occurred. They will struggle to do so many months or years later without their notes.

• Fair consultation is crucial to overall fairness of redundancy dismissals: consultation should be a two way conversation between manager and employee. It is common for managers conducting a redundancy consultation meeting to use a script to support the conversation, with the script being used to ‘guide’ or ‘prompt’ a two-way discussion. However, tribunals may be quick to criticise and question the genuineness of the consultation process if the script is merely quickly read aloud verbatim by the manager. This is primarily a training issue – managers should be given training as to how to undertake consultation meetings with potentially redundant staff – with the dos and don’ts clearly identified. They should also be alerted to the fact that, even in a genuine redundancy situation, failures in the consultation process can render a dismissal unfair.

Norman -v- Lidl Great Britain Ltd [2025] Sheffield ET 1804509/2023

Important note: ET level decisions are merely of persuasive value, and are not binding upon future ETs, but can provide a useful indicator of how certain issues are currently being deal within the ET.