A flight attendant who was unfairly dismissed during a redundancy selection process was a victim of indirect age discrimination, a tribunal has ruled.
The Glasgow employment tribunal found that TUI Airways discriminated against Mrs K Irving when it used length of service as the “sole or predominant factor” when deciding who to select for redundancy.
The tribunal ruled that TUI “failed to engage meaningfully” after Irving and trade union representatives raised concerns about the criteria, which caused her to become an “inbetweener” as she was not senior enough to avoid redundancy and not in a position to take a part-time role.
Irving’s claim for indirect age discrimination, unfair dismissal and breach of contract succeeded. A claim of indirect sex discrimination was dismissed after she withdrew.
The tribunal heard that Irving was employed as cabin crew, based at TUI’s Glasgow airport for more than 20 years until her dismissal on 31 October 2021.
As a result of a lack of winter flights during the pandemic, TUI met with trade union representatives to discuss winter staffing levels, and to “look at cost savings”.
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On 24 June 2021, an email was sent to all cabin crew staff across the organisation informing them of a formal redundancy consultation process, and the tribunal heard it was “made clear” that the Glasgow base would require redundancies.
TUI consulted with the trade union and devised a selection process, described as a ‘productivity tool’, which included an analysis of individual productivity, attendance records, length of service and live sanctions. The tribunal said the union “pushed” for length of service to be included in the process, but that, in trying to implement the productivity tool method, a number of “challenges arose” with the selection process.
Nevertheless, on 8 September, Irving attended a formal consultation meeting with people and performance manager Mr McCabe, after she was identified during the selection process. The tribunal noted that Irving had been offered a part-year contract, but this was not suitable for her.
During her meeting with McCabe, Irving said she felt discriminated against on the grounds of age, given that the reliance on length of service meant that she could never be safe from redundancy and that all those who were safe were over the age of 45.
McCabe apparently said that the parameters were not just length of service but also attendance and live sanctions. The tribunal accepted that Irving countered that none of the employees in Glasgow were scored down for live sanctions and none had met the attendance triggers, meaning that length of service was the “sole criterion that had any bearing on the selection”.
The selection process was then paused because of a collective grievance raised by the union about the selection criteria, which saw decisions taken “overwhelmingly on the basis of length of service alone”.
On 23 September, a grievance meeting was held by Mr Loft, inflight retail performance manager, during which a trade union representative said only two or three staff met the criteria of having live sanctions or absence triggers, and questioned the length of service parameter. The union also said that the data about sanctions and absences was not up to date.
The tribunal said Loft did not address “in any meaningful way” the use of length of service, nor did he investigate the extent of which service had “in fact become the sole or predominant factor at the bases concerned”.
On 30 September, Loft responded with a letter stating the outcome of the grievance. He said the complaint, that staff were being identified on length of service alone, was not upheld. He said a review of the data sources had taken place, but the tribunal found that this had not happened. The union did not appeal the decision.
On 20 October, Irving was dismissed. She appealed the decision on 4 November on the basis that all those safe from the redundancy selection process “had worked for more than 25 years, a length she could not have reached given her age”, but she was not successful.
The tribunal found that while there was a “genuine business reason” for the redundancy, and that staff had been given a substantial advance warning, the quality of the consultation was “lacking”.
Judge R Mackay said TUI “failed to engage meaningfully with either [Irving] or the union” on the fact that length of service became the de facto selection criterion, rather than being used as a tiebreaker as it was intended.
Mackay said the consultation was “lacking” as the trade union and Irving both “raised concerns about the criteria deployed and the fact that length of service became the sole or predominant criterion in identifying employees.”
Irving was awarded £19,896 in an enhanced redundancy payment in accordance with the respondent's redundancy policy. The statutory payment was £11,152, so she was not entitled to a basic award. There was a shortfall in the payment, so she received an additional sum of £594.69 for breach of contract, and £6,000 for injury to feelings.
Alexandra Mizzi, legal director at Howard Kennedy, warned against using length of service as a redundancy criterion. “This approach is legally risky, as this case demonstrates, and can result in businesses losing highly skilled staff just because they happen to have joined more recently,” said Mizzi, adding that “employers should invest time in devising fairer and more tailored redundancy criteria, and ensure they mitigate any discriminatory effect”.
TUI has been contacted for comment. Irving could not be reached.