Tribunals are always alive to cases where an employer uses redundancy as a vehicle for exiting employees where other motivations are present. Sometimes those issues will relate to performance, attendance or conduct.
Even where a genuine redundancy situation exists, an employer may still fall foul of a tribunal where the employee can convince the tribunal that that the process was unfairly weighted against them.
This was the scenario in the case of Shirat v Credit Suisse Securities (Europe) Ltd. In this case, S was a senior employee heading up a department. There was one other (younger) employee in the department. This person received a job offer from a rival organisation, but after discussions with the employer was persuaded to stay. The following month, the employer announced that a redundancy exercise would take place across two departments, including the one where S worked. Each employee was assessed according to four criteria; performance; skills and competencies; experience and potential. S scored highly for ‘skills and competence’ and ‘experience’. He however scored bottom marks for ‘performance’ and ‘potential’.
The tribunal found that S had been unfairly dismissed. They also found that he had been subjected to age HR. Reviewing the evidence, the tribunal was satisfied that the younger employee had been persuaded to stay on the basis that he would head up the department, and the route to achieve this would be to exit S. The tribunal was critical of the use of ‘potential’ as a criterion; it was at least capable of being indirectly discriminating against longer serving and older employees. The only logical explanation was that S had been made redundant to facilitate his replacement by a younger colleague.