Redundancy selection: qualifications and age discrimination

To dismiss someone fairly for redundancy you must adopt a procedure that is fair and reasonable in all of the circumstances.  Part of this involves identifying fair selection criteria to choose which members of staff you will retain and those you will make redundant. In Wayne Norman v Lidl Great Britain Ltd, the tribunal examined whether including degree status as part of the criteria around knowledge amounted to age discrimination, on the basis that people over the age of 60 are less likely to have degrees than younger employees. 

Facts

Mr Norman, a senior construction consultant, was responsible for overseeing the construction, alteration and refurbishment of Lidl stores in Doncaster. He was 63 years old and had worked for Lidl for just under 23 years. 

In early 2023 Lidl decided to restructure its head office and regional property offices. Mr Norman was placed at risk of redundancy and was in a pool with two other senior construction consultants (Mr Simpson and Mr Farcas). There was only one senior construction consultant role available in the new structure. 

The scoring matrix contained the following criteria:

• Experience: including experience of multi-project delivery, tender pack/appointment process, construction site management, construction administration and stakeholder/project team management. 
• Knowledge: including an assessment of knowledge of Lidl's specification, stakeholders within the industry, Lidl's processes and procedures, relevant construction qualifications and knowledge of the full development process. 
• Skill: an assessment of communication, negotiation, problem solving, showing initiative, organisation/time management, budget control, and quality control.
• An assessment of key areas including achieving deadlines and managing workload, delivering results, entrepreneurial actions, team player and attention to detail. 
• Disciplinary record
• Length of service: only to be used as a deciding factor when two employees scored equally. 

Mr Schofield (regional head of property) and Mr Beaumont (regional property director) separately scored Mr Norman against the criteria and then attended a Teams meeting with HR to arrive at an agreed score. Mr Norman obtained a total of 17 points, including 3 out of a maximum of 4 points for knowledge. Mr Simpson was the lowest scorer and Mr Farcas the highest with a score of 18 (he scored a 4 for knowledge).

Mr Norman was informed that, based on the scoring criteria, he was provisionally selected for redundancy, pending a consultation process. He was also given a list of alternative roles he could apply for. 

During a call with a colleague, Mr Norman found out that the senior construction consultant role had been given to Mr Farcas. He contacted Mr Schofield who, eventually, confirmed this. Mr Norman said that he disagreed with the scoring and asked if he could challenge it at the next consultation meeting. Mr Schofield said he couldn't.

Mr Norman took the view there was little point in turning up to the consultation meeting if he couldn't dispute his scores and notified Mr Schofield. Mr Schofield (presumably under pressure from HR) encouraged Mr Norman to attend. In an attempt to paper over his previous comments he, somewhat disingenuously, said: “As discussed the purpose of the consultation meeting is to discuss the scoring matrix, and to allow you the opportunity to challenge any of the scores you did not agree with - which as you confirmed last week you intended to do.” He told Mr Norman in a separate conversation that he didn't expect the marks to change. 

The meeting went ahead. Mr Schofield explained the scoring and said, “For knowledge: you were marked down for not having ‘relevant construction qualifications’ in that you do not have a construction degree.” Again, he said the scores would not change.

A further meeting was held on 10 March 2023. Mr Norman had been informed that only Mr Beaumont and a note taker would be present but was surprised to find Mr Schofield and an HR representative also in attendance. Mr Beaumont read from a prepared script outlining the redundancy process and noting that Mr Norman had not applied for any alternative roles. Mr Norman was then dismissed.

He brought claims to the tribunal of indirect age discrimination, direct age discrimination and age-related harassment. 

Employment tribunal decision

Unfair dismissal 

The tribunal accepted this was a genuine redundancy and that Mr Norman was dismissed as part of that process. He was informed of Lidl's intentions, aware of the proposed method of selection, and reasonably placed in a pool of three. It had also taken reasonable steps to identify alternative employment. But, he was not given all of the information he needed to challenge his own scores. The process was also flawed: the managers didn't understand the process, and the 10 March meeting was not really a consultation meeting; it only lasted six minutes and consisted of Mr Beaumont reading out a pre-prepared script. 

It concluded that Lidl had failed to conduct a reasonable consultation process, and the scoring was also not fairly and reasonably applied in relation to the ‘knowledge’ criterion. Consequently, the unfair dismissal claim succeeded. 

However, the tribunal then considered whether, had a fair process of consultation and selection process been followed, Mr Norman would still have been selected for redundancy. It concluded that he might have secured a higher ‘knowledge’ score, but it was equally possible he would not. The tribunal also noted that Mr Farcas's additional expertise were unique and clearly valuable to Lidl. Therefore, the tribunal concluded that, even with a fair process, there was a 50% chance Mr Norman would still have been dismissed. 

Indirect discrimination

Under section 19 of the Equality Act 2010, indirect age discrimination occurs when an employer applies a provision, criterion or practice (PCP) to a group of people of different ages, but it puts people of the employee's age at a particular disadvantage, which cannot be justified. Mr Norman claimed that including a degree qualification in the redundancy scoring put people of his age at a particular disadvantage. 

Mr Schofield and Mr Beaumont acknowledged that Mr Farcas scored higher on the ‘knowledge’ criterion, which was materially influenced by him possessing one or more relevant qualification. The tribunal accepted that those over the age of 60 were less likely to have a degree or other qualification than those in their 30s and that Mr Norman was put at a disadvantage. Lidl did not present a defence, and this claim was therefore successful. 

However, the tribunal found that even without the indirectly discriminatory factor (the degree qualification requirement), the same ‘knowledge’ scores would have been given. This was because of Mr Farcas's specific expertise in civil engineering which enabled him to carry out tasks no one else could. 

Harassment and direct discrimination

Mr Norman claimed age-related harassment, alleging a colleague had shouted ‘Oi Grandad’ across the office. The tribunal said there wasn't enough evidence for it to conclude that this remark had been made and, even if it had, it said these were ‘innocently’ made and didn't meet the legal test of harassment. The tribunal noted Mr Norman's own use of the term ‘old dude’ with a smiley emoji in a message, suggesting he was comfortable with references to his age and did not perceive them as offensive. 

Mr Norman also claimed age-related harassment and direct age discrimination in relation to the redundancy scoring but these claims also failed. The tribunal found that Mr Schofield and Mr Beaumont based their decision on his abilities, not his age. 

Remedy

At the remedy hearing, the tribunal found no financial loss from the indirect age discrimination; Mr Norman and Mr Farcas would have received the same ‘knowledge’ scores even without the discriminatory factor. Compensation was therefore limited to injury to feelings, specifically related to the application of the knowledge criterion. Mr Norman was awarded £4,000 for injury to feelings and £646.15 in interest.  

Regarding the unfair dismissal claim, Mr Norman was not entitled to a basic award as he had already received a redundancy payment. His compensatory award of £81,355.76 was reduced by £7,136.25 for post-dismissal earnings and then halved, reflecting the tribunal's finding that there was a 50% chance he would still have been dismissed had Lidl adopted a fair process. After adjusting for tax, Mr Norman was awarded £46,280.63.

Key takeaways for employers

This case reinforces that while redundancy is a potentially fair reason for dismissal, the selection process and consultation must be fair, reasonable and free from discrimination. Employers should apply objective criteria that do not put employees with a protected characteristic (e.g. pregnancy, disability, age) at a disadvantage either directly or indirectly, and ensure that scoring decisions are supported by clear, evidence-based justifications. 

Employees should be given details of their individual assessments and offered a genuine opportunity to challenge their scores through consultation meetings. It is also important to ensure that managers fully understand the redundancy process and what is required from them. 

Although guidance was provided to the decision-makers in this case, the tribunal noted it lacked clarity on how to produce evidence-based scores and the extent to which those scores could be challenged. As a result, Mr Schofield incorrectly told Mr Norman he couldn't challenge his scores, despite the standard documentation that was issued suggesting otherwise. The tribunal also noted that adding an explanatory column to the scoring matrix could have helped employees understand how their scores were determined.

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