The claimant was employed by the respondent from January 2017 until July 2019 as a receptionist.  The respondent operated as an Optician and employed four receptionists.  The claimant was the youngest and most recently appointed to the team.   The respondent had only 5 employees on its payroll with all other staff, including the Practice Manager, working on a self-employed basis.

On 31st July 2019, the claimant was invited by the sole director of the respondent for a ‘word’.   At this informal meeting the claimant was told she was being dismissed on the basis of redundancy with immediate effect.   She was handed a prepared letter, reference, payslip and pension details.   The reason given to the claimant was ‘LIFO’ and as the employee with the shortest service, she was being made redundant.   The claimant appealed this decision, and the sole director conducted a review.   At this point, he stated he had used other criteria for selection but did not provide any details or scoring.   The appeal was unsuccessful.  It was only on foot of a case management preliminary hearing that documents detailing a ‘selection process’ were made available.

The Tribunal did question whether there was a real redundancy situation considering that the respondent’s witnesses stated that 3 receptionists could do the work of the 4 but at other times said it could be completed by 2, considering that one was on long-term sick.  The Tribunal did find a redundancy situation but stated that the selection procedure was entirely unfair and inappropriate.   There was no consultation, the decision was predetermined, and the claimant had no opportunity to put her view across.   The document arising after the preliminary hearing purported to illustrate a fair selection.  Yet there were redacted and unredacted documents which gave different scores.    Accordingly, these documents were regarded as being entirely unreliable.   The internal appeal process was also questioned as no consideration was given to another senior person handling the appeal.  As a result, it was held that the dismissal was unfair.

On the age discrimination point, it was argued that there was indirect age discrimination through the use of LIFO.   The respondent argued that it was not the basis, yet the claimant’s evidence went unchallenged and she had been expressly told it was the selection process used.  For this reason, the Tribunal treated it as the reason for the redundancy.  It was agreed between the parties that if LIFO had been used that it would place younger employees at a disadvantage.  Furthermore, the respondent did not seek to justify LIFO as a proportionate means of achieving a legitimate aim.   This left the Tribunal with no option but to find indirect age discrimination as a result of using LIFO.  Therefore, on top of the remedy for unfair dismissal the claimant was awarded £17,500 for injury to feelings as a result of the age discrimination.

Practical Lessons 

This case demonstrates how redundancy situations should not be handled.  The process was predetermined and clearly unfair.  To add salt to the wound of the employer the fact they had used ‘LIFO’ also gave rise to indirect age discrimination which was not adequately defended at the Tribunal.   This should serve as a lesson for employers to ensure that any redundancy process not only has proper processes in place but uses objective criteria rather than solely depending on LIFO.  The outcome in failing to do so could result in substantial compensation payments relating to unfair dismissal as well as age discrimination.
https://www.gov.uk/employment-tribunal-decisions/ms-o-gorton-v-tj-crompton-ltd-2414322-slash-2019