The Claimant in this case worked as cabin crew for TUI from its Glasgow base. She was employed for 20 years until she was dismissed on 31 October 2021 following a redundancy exercise.
In June 2021, the Respondent met with trade union representatives to discuss winter staffing levels and on 24 June 2021, the Respondent’s Director of Customer Delivery wrote to all cabin crew staff outlining the commencement of a formal redundancy consultation process.
In conjunction with the BASSA trade union the Respondent designed a “productivity tool”. This was essentially the selection criteria for redundancy and included triggered sickness absence (in line with the Respondent’s absence policy), live sanctions (of a disciplinary or performance nature), and length of service.
After this tool was applied the Claimant was identified as being at risk of redundancy and was invited to a formal consultation meeting. During the course of the meeting, the Claimant stated that she felt discriminated against on the grounds of age given that the reliance on length of service meant that she could never be safe from redundancy and that all those who were safe were over the age of 45. She was informed that there were other factors at play but at the Tribunal was able to lead evidence, which was accepted by the Respondent, that none of the employees in the pool at Glasgow had been scored down for live sanctions and none had met the attendance triggers. That meant that length of service was the sole criterion which had any bearing on the selection process.
While the Union had initially supported the use of length of service as a criterion, they had only intended it to be a tie breaker. A collective grievance was brought on this issue which was not upheld. The Union withdrew their support of the “productivity tool”.
The Claimant attended a second individual consultation meeting on 8 October 2021 and raised a number of questions about the process. A third individual consultation meeting took place on 20 October 2021 in which the Claimant was dismissed. She appealed on a number of grounds in a hearing on 4 November 2021. The redundancy dismissal was upheld.
The Claimant brought claims of unfair dismissal and indirect age discrimination to the Employment Tribunal. Due to the selection criteria it was held that the dismissal was unfair. The Tribunal stated that it was not within the band of reasonable responses to proceed with a selection process “which was manifestly discriminatory without attempting to address the concerns raised, to identify any alternative criteria which may have been applied, or at least seek to provide objective justification.”
The claim for indirect age discrimination was also successful. It was held that as the Claimant was 42 it was not possible for her to have over 25 years’ service and therefore this policy had an adverse impact on her. The Tribunal then considered if this discrimination was a proportionate means of achieving a legitimate aim. No evidence was led by the Respondent on this point. Case law has previously found that length of service can be a proportionate means of achieving the legitimate aim of rewarding experience and loyalty. But this can only be the case if it is one of a number of criteria and not the predominant factor.
For employers, it is important that selection criteria must not be discriminatory. If issues are brought up by unions and employees, it is crucial that employers engage meaningfully as part of the redundancy process. The Tribunal made specific mention of the fact that it was hard to argue proportionality because the Respondent failed to address the issue at all and did not acknowledge that there was a problem.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.