A vitamin saleswoman put through a “ham fisted” redundancy process that she claimed others younger than her were not subject to was substantively and procedurally unfairly dismissed, the Liverpool Employment Tribunal has found.
Pauline Cassidy was 63-years-old at the time of her dismissal for redundancy from Hereford-based Quest Vitamins, which sells nutraceutical products and ingredients for food and agricultural/manufacturing industries.
She claimed unfair dismissal after she felt she was treated differently from her younger colleagues during a redundancy procedure. While their roles subsequently avoided redundancy by being allowed to job share, Cassidy was not afforded the same range of options. She claimed this was unfair dismissal and age discrimination by her employer.
Cassidy worked as a saleswoman covering the north of England, the Midlands and north Wales. The tribunal heard that she began her employment with Quest aged 60, and joined its company pension scheme at 63.
A downturn in business led to a number of roles becoming redundant ahead of the incidents in 2016, including the loss of the organisation’s only HR officer.
As a result, a company accountant, Hannah Cross, took on HR responsibilities at Quest, despite the fact that she had no experience in this area and little understanding of employment law.
By January 2016, Cassidy’s sales had been in decline for two years. While this was agreed not to have been Cassidy’s fault, there was no prospect of this being reversed in the future and Quest felt her sales area was no longer economically viable, placing her at risk of redundancy.
Two colleagues of Cassidy, Debbie Parnell and Charlie Purdie, were employed as area sales managers covering the West Country and Wales, and were also at risk of redundancy.
In June 2016, the two took part in a consultation meeting with national sales manager Barney de Beer and Cross. They were made aware that Cassidy’s job was also at risk, having been informed of this in a letter dated 27 June 2016 from De Beer.
Cassidy was not informed of the other two sales people’s consultation despite having asked for the information – something she maintained was discriminatory, given that Parnell and Purdie were younger. She said they had been treated more favourably than her as they were in a better position to agree a job share.
Parnell and Purdie agreed a job share on reduced hours, and their roles’ redundancy was subsequently avoided at a consultation meeting held on 12 July 2016, before any consultation was held with Cassidy.
On 18 August 2016, Cassidy had her first and only consultation meeting with De Beer and Cross, which was held in a hotel foyer – something noted at the tribunal as being “unfortunate” and which the organisation conceded was unacceptable.
Cassidy was “unhappy and uncomfortable” with this setting for the meeting, which the tribunal found may have affected her ability to argue her case regarding the prospect of redundancy.
During the meeting, Cassidy was not offered the option to travel to other sales areas, or informed that her unwillingness to travel would lead to her not being pooled with the other sales team members. It was De Beer’s responsibility to make this clear, and the failure to do so resulted in “a procedural and substantive unfairness”.
When Cassidy said she had not been given anything meaningful to consult on, De Beer’s alleged response was: “Well we could have another meeting, but what would be the point except to have a nice cup of tea and a chat if you don’t have any proposals.” This wrongly insinuated that it was Cassidy’s responsibility to take the initiative to avoid redundancy.
De Beer also incorrectly conflated Cassidy’s potential voluntary redundancy with early retirement – the distinction between which he told the tribunal he was not “au fait”.
Following the consultation meeting, Cross emailed De Beer a copy of Cassidy’s redundancy letter, which Cassidy did not receive despite it being posted to her.
The letter confirmed: “At the meeting you were unable to give any suggestions as you were unable to relocate to other areas of the UK [...] we feel that we are now at the final stage of this consultation process.”
While the letter gave Cassidy the option to attend a final meeting to discuss any suggestions she may have to avoid her redundancy, this meeting never took place, which further contributed to the company’s unfair dismissal of her.
In a phone call between De Beer and Cassidy on 5 September 2016, Cassidy maintained that she had not received a copy of the letter, while he claimed he had read the contents of the letter to her over the phone. On balance, the tribunal found it had not been read out, and that Cassidy did not know its contents.
In an email sent on 12 September 2016, a redundancy letter and calculation were forwarded to Cassidy, where she was offered the right to appeal by 16 September. While Cassidy sent a letter on 14 September, it was not read to be an appeal, so much as a request for more information. De Beer responded with an offer of an additional two weeks’ notice to appeal.
Cassidy lodged her appeal on 22 September, stating that she was dissatisfied with the methodologies used for her redundancy.
She wrote: “You have unfairly selected me for redundancy, or, as I see it, unfairly dismissing me […] unless you remedy this situation immediately and without prejudice, I will seek redress against Quest for unfair dismissal.”
While a final telephone meeting was held on 3 October 2016, Cassidy was dismissed by reason of redundancy on 7 October 2016, which marked her effective date of termination. She issued a claim of unfair dismissal against the company at the tribunal on 8 February 2017.
The tribunal found that Cassidy’s dismissal was unfair for several reasons. The decision to hold Cassidy’s consultation meeting in a busy hotel foyer fell outside the band of reasonable responses, and her questions relating to the redundancy process were not responded to fully.
She was also given an unacceptable amount of warning for her dismissal, and was not offered alternative employment, which resulted in “procedural and substantive unfairness” by the company.
The tribunal ruled that much of these procedural deficiencies were down to the “incompetence and inexperience” of Cross and De Beer.
“Hannah Cross was not a qualified HR professional; she was an accountant who had stepped into the breach, and had little knowledge of HR matters and redundancy,” the judge found, adding: “It was evident from [her] evidence before the tribunal that she was confused by the process and relied heavily on external advice.”
However, while the tribunal found that many aspects of the redundancy process were “ham fisted”, it did not constitute age discrimination, as Cassidy had “failed to establish there was no less favourable treatment between her and her comparators”.
“It is uncontroversial both [Parnell and Purdie] were younger than the claimant and were not selected for redundancy, but the tribunal found there was no causal connection with age,” the judge said. Younger employees who had not put forward positive alternatives to redundancy “would have been treated in the same way”, the judgment stated.
The case was referred for a remedy hearing in early 2018, but this was settled out of court.