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Claimant wins age discrimination claim because lack of qualification used in redundancy procedure
In the recent case of Mr W Norman v Lidl Great Britain Ltd: 1804509/2023 the Claimant, aged 60, had been selected after scoring one point lower than a comparator in his 30s.
The Employment Tribunal deemed the selection for redundancy unfair due to flaws in consultation. The Claimant was initially informed that he could not challenge scores during consultation. Although the employer changed their stance on that, the Claimant was still not given a genuine opportunity to challenge the scores. The scorer attended the consultation meeting but was unprepared and did not have information as to how the Claimant had been scored. As such the scorer used anecdotal examples and it was difficult for the Claimant to challenge the scores. The employer did not produce compelling evidence regarding the reasons for the scores, referring to sporadic examples that did not really explain the difference in scoring between candidates. These examples appeared to have been put forward to justify a score already given because they had not been referred to in consultation. As such the Tribunal found that the scores themselves had not been reasonably applied.
The main criteria on which scores differed was knowledge. The Claimant did not have a construction degree but the comparator in his 30s did. This materially influenced the score. The employer accepted that those in their 30s were more likely to have a degree than those in their 60s. As such this scoring exercise placed the Claimant at a disadvantage due to his age. The employer had not pleaded a justification defence and so the claim succeeded. As such the Claimant had been indirectly discriminated against on the grounds of age. The success of this claim needs to be put in the context of the unfair dismissal claim succeeding. Had the employer scored on knowledge more robustly it may have been easier to defend this aspect of the claim. Nonetheless this case highlights the need to carry out an equality impact assessment when putting redundancy criteria together.
The Tribunal decided that had the redundancy process been carried out fairly there was a 50% chance that the Claimant would have been retained. As such the Claimant's compensation for unfair dismissal will be reduced by this amount.
Redundancy selection procedures can be challenging for both employers and employees. It is important that those undertaking scoring understand the consultation process. Our experienced team of employment solicitors can fully advise on redundancy procedures from the planning stage through to any appeals.
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