We review two recent first level tribunal decisions which upheld employees’ claims of discrimination, brought following a redundancy process.
Redundancy Process | Case 1
The first, Robson v Clarke’s Mechanical Ltd involved a plumbing and heating engineer who was informed in a meeting with no prior consultation or notice that his employment would be terminated on the grounds of redundancy. The company had lost a major contract and in addition to dismissing Robson, other employees were invited to apply for voluntary redundancy.
Robson was not informed of the right of appeal but appealed the decision nonetheless and asked if the dismissal had been based on his age. Aged 69, he was a highly qualified plumber and gas fitter. The company also had vacancies on their website that Robson had not been considered for, despite being suitably qualified. Robson was sent the scoring criteria scores at the point of appeal. He believed them to be fabricated as there had been no prior mention of them. Furthermore, Robson’s score for performance and experience did not appear to reflect his skills and abilities.
The tribunal held that the lack of evidence to justify the dismissal pointed to his selection being made on the grounds of his age. Robson informed the tribunal that colleagues had referred to him as ‘half dead Dave’ and while the Respondent dismissed this as ‘banter’, the tribunal found it to be age-related and derogatory. The Respondent was ordered to pay almost £25,000 to Robson.
Redundancy Process | Case 2
The second case also reported this month involved a Receptionist, Phillips, against Ballymore Construction Services. Phillips brought her race discrimination claim after colleagues had asked if she had touched an electrical socket ‘to make her hair like that’. She further told the tribunal that she heard one colleague use the N word seven times. The company addressed the use of the N word with the colleague involved by speaking to them and explaining the inappropriateness of the term (English was not their first language). Others were given verbal warnings for their behaviour. Philips raised a grievance and the comments about her hair were held to be indirectly discriminatory. Her remaining concerns were dismissed. Following a review, Ballymore needed to reduce their costs. Several roles were placed at risk of redundancy, to include Phillips’ role. Phillips expressed an interest in an alternative role, however she took some periods of absence, some of which the company deemed to be unauthorised as no fit note was provided. She then resigned within the consultation period claiming discriminatory treatment.
Philips’ discrimination claim was upheld, the judge noting that the electrical socket comment would not have been said to a white employee and was made to Phillips because she was black and wearing her afro hair out. The use of the N word was considered to be offensive and inappropriate, although the frequency of the use of the word was in question. Compensation is to be decided in due course.
Guidance for Employers
Both these cases serve as a reminder of the importance, firstly, of robustly preventing and addressing discriminatory behaviour in the workplace and secondly of following a fair redundancy procedure.
- Employers must be able to demonstrate that they have taken ‘reasonable steps’ to prevent harassment before the act of discrimination or harassment occurs.
- Employers should ensure they have clear Equal Opportunities and Dignity at Work policies in place that are regularly reviewed and adequately implemented.
- Managers and supervisors should be adequately trained in equal opportunities and harassment issues and complaints must be effectively dealt with. The mere existence of a policy is unlikely to be sufficient to argue that reasonable steps have been taken to prevent harassment.
- Furthermore, when a redundancy situation arises, employers must be able to demonstrate a clear rationale for the requirement to consider redundancies. Once that has been established, employers must follow a fair redundancy process. This will involve pooling all staff in affected roles and undertaking a transparent selection process as well as adequately consulting with all staff before final decisions are made.
For further advice on specific situations, Wirehouse Clients should contact our HR Advice Line. If you are not a Wirehouse Client, get in touch with our Employment Law team today.