Case Study
Mr Norman worked for Lidl Supermarket for over 20 years, when he was placed at risk of redundancy. At this time, he was in his 60s and employed as a Senior Construction Consultant. The plan was to reduce this role from three posts to just one.
As part of the redundancy selection scoring matrix, he was measured against “relevant qualifications”. During consultation, he was told that he had effectively been marked down for his qualifications, in particular for not having a degree. He was the lowest scoring candidate, and alternative roles were not deemed suitable as, again, he did not have a university degree or equivalent qualification, which was stated as a requirement.
Mr Norman challenged his selection on this basis and claimed that people of his age were less likely to have a degree, as a university education was not as widespread or available to people of his generation. This argument formed part of his subsequent claim to the Employment Tribunal, i.e. that he had been indirectly discriminated against on the basis of his age.
Case Study
Mr Norman was successful in his claims for unfair dismissal and for indirect age discrimination. He was awarded £51,000 in compensation on top of the £17,000 of redundancy pay that he had already received from his employer.
His other claims of age-related harassment and direct discrimination failed.
In terms of learning points, the ET found that the managers did not understand the scoring process, and it had not been fairly applied, nor had any moderation of scores taken place. The managers had destroyed any records made and then could not recall their reasoning for awarding the scores they had. This made consultation unsafe as the scores could not reasonably be challenged.
In terms of the successful indirect discrimination claim, the ET found that the requirement to hold a degree was a PCP (provision, criterion or practice) applied to all, but that it put Mr Norman at a disadvantage due to his age. The others in the pool for selection were in their thirties, and Mr Norman produced statistical evidence showing people in their sixties were less likely to have a degree-level qualification than people in their thirties. The ET accepted this as fact. Legally, the employer could have tried to defend this on the basis that the requirement was objectively justified (and there was no less discriminatory way to achieve it), but they appear not to have argued this.
All that said, the Tribunal still found that the candidate who was successful was the correct candidate and, had the scoring been applied differently, this would have remained the case. In other words, had the discrimination not happened, Mr Norman still would not have got the job. For that reason, there was no further loss of earnings award over and above the unfair dismissal, but he did receive another £4,500 for injury to feelings.
We don’t tend to see many age discrimination cases, and although the Employment Tribunal statistics show us that they are rare (around 16 cases a year making it to a final hearing), they do seem to be attracting significant compensatory awards. The average compensation awarded in successful age discrimination cases has jumped around 600% to £103,000 in the last couple of years (2023/4). However, this may be because the awards that have been made are to high earners, whereas the lower value cases are more likely to be settled.
As the UK working population ages and awareness grows, it seems likely that age discrimination cases will rise. The law is, of course, not limited to these types of cases, and age is a protected characteristic for all, not just those who are older. However, there does seem to be an uptick in cases featuring assumptions about retirement, comments such as “old fossil”, and a tendency to overlook such banter. We recommend investigating and dealing with such comments promptly and consistently, while avoiding stereotypes. Things like succession planning are also high-risk areas, especially with the default retirement age having been removed in 2010.
In this particular case, the employer was caught out by indirectly discriminatory criteria, the requirement to hold a particular level of qualification. Indirect discrimination can be tricky to spot, but things like including sickness absence and family leave should also trigger alarm bells.
As ever, we recommend reviewing and updating your policies and ensuring fresh EDI training to help staff identify the risks and act accordingly.
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