In Norman v Lidl Great Britain Ltd the employment tribunal judgment noted that the respondent had set up a potentially fair method of scoring and criteria against which an objective assessment could have been made. However, it was found that the employee selected for redundancy was both unfairly dismissed and discriminated against. This resulted in an award of over £50,000 being made. Where did it go wrong?
Background
The claimant was a 63 year old senior construction consultant with 22 years' service. In March 2023 the respondent restructured its construction team, reducing three roles to one. Criteria used included experience, knowledge, skills, overall performance and disciplinary record. Mr Farcas, one of the claimant's colleagues who was in his thirties, scored one more point than the claimant, and was retained in the sole senior construction consultant role. The claimant and another colleague were made redundant.
Although during the consultation process, the claimant was told that the selection criteria could not be challenged, he had subsequently been allowed to do so. In the consultation meeting that followed, the claimant was told the one mark difference between him and Mr Farcas was due to the claimant not having a "relevant construction qualification". This was expanded upon to confirm that it was the lack of a "construction degree". The claimant's scores were not amended.
The claimant's employment was terminated following a second consultation meeting. Although he lodged an appeal against the dismissal, he subsequently withdrew it finding the process too distressing.
Employment tribunal
The claimant complained of unfair dismissal, indirect age discrimination, direct age discrimination and age-related harassment. The direct age discrimination claim was withdrawn and the age-related harassment claim was unsuccessful.
In assessing the indirect age discrimination claim, the tribunal accepted that those over the age of 60 were less likely to have a degree or other qualification than those in their thirties. The evidence before the tribunal was clear that a requirement for a degree was applied. The respondent did not pursue a defence of justification and therefore the claimant had suffered indirect discrimination. Interestingly, the tribunal also found that had the discriminatory factor been absent, the respondents would still have given the same scores to the claimant and Mr Farcas.
While the tribunal found the redundancy to be genuine, and a lot of the procedure involved to have been reasonable, the failings in the selection process were fundamental. It found that the managers involved "did not fully understand the nature of the task they were being asked to complete or the degree of analysis it might perhaps be subjected to if challenged". The guidance that they were given was also lacking. The managers were not able to confirm to the claimant what had been considered against each individual selection criterion in his case. They were also not adequately prepared for consultation meetings.
The tribunal concluded that the method of scoring was not fairly and reasonably applied in the claimant's case, and the dismissal was consequently unfair. At the employment tribunal, the managers involved struggled to explain how and why they reached their conclusions. This was helped by the fact they had been instructed by the respondent to destroy any notes of their scoring.
Although the claimant was subsequently awarded substantial compensation, it was reduced to reflect what the tribunal found to be a 50% chance that the claimant would have been fairly dismissed had a fair procedure been followed.
Where did it go wrong?
In terms of the discrimination claim, the selection criteria used by the respondent included one that indirectly disadvantaged older employees. Those involved in setting selection criteria need to be alert to the possibility of indirect discrimination. If it is identified, consideration should be given to whether the selection criteria can be objectively justified as a proportionate means of achieving a legitimate aim or whether a less discriminatory alternative can be used instead.
A significant failing in this case related to the preparedness of the managers involved. Although some guidance seems to have been given to them, it was plainly lacking. General guidance given included a statement that managers should disregard any circumstances that come about because of an employee's protected characteristic. That is easy to include in guidance but not always so easy for managers to recognise and act upon. Scorers were also advised to have clear and relevant examples to substantiate their scoring. As this case demonstrates, the provision of guidance and ensuring managers understand and follow it are two different things.
The instruction to managers to destroy notes taken while undertaking scoring was described by the employment tribunal as "quite surprising". That was perhaps an understatement and employers should always ensure that they keep a record of why individuals have been scored in a particular way, particularly for criteria that might be less objective such as skills and performance.
