Previous “sham” redundancy involving an older employee was not evidence of age discrimination.
Facts
Mrs Connor and Mrs Dixon were both employed by Carpetright Plc in financial roles. Carpetright Plc announced that it was proceeding with a Company Voluntary Arrangement (a type of insolvency process). During this, it was proposed that the finance department would be restructured. Both Mrs Connor and Mrs Dixon’s roles were at risk of being made redundant.
Mr Karir, who was in charge of the redundancy process, told Mrs Connor (who was in her 50s) that her job was at risk of redundancy. Mrs Connor thought it was unfair that her line manager, Mrs Woodham (who was some 20 years younger), was not also being placed at risk of redundancy. Mrs Connor’s role was subsequently made redundant and although alternative roles were suggested, none were suitable. One role that had been created was filled by Mrs Worrall (who was also some 20 years younger). Mrs Connor was dismissed on 3 August 2018.
Mrs Connor cited a previous incident involving a former colleague in support of her age discrimination claim. The Employment Tribunal (ET) accepted that Mr Karir had previously “targeted” colleagues (including a woman in her late 50s) who he wanted to remove from the company and did so under the guise of redundancy. He was in the habit of determining who he wished to retain in the business. He would tell certain favourite colleagues privately that they were not at risk even though, publicly, they were in a redundancy situation with other staff.
Mrs Dixon was also placed at risk of redundancy and submitted a grievance in relation to the process. Her grievance related to the fact that the “new role” for which she had to apply was in fact almost identical to her old role.
Mrs Connor claimed unfair dismissal by reason of direct age discrimination. Mrs Dixon only claimed unfair dismissal.
Decision
The ET considered the claims separately.
Mrs Connor
Mrs Connor claimed that the decision to make her redundant was direct age discrimination. She identified two comparators, Mrs Woodham and her junior colleague Mrs Worrall (both some 20 years younger than her).
The ET found that Mrs Worrall was not an appropriate comparator, despite them both competing for the same alternative roles and Mrs Worrall being considerably younger than Mrs Connor.
The ET found that there were insufficient facts to shift the burden of proof to Carpetright. The allegation that this type of behaviour had happened previously and Mrs Connor’s belief that age was the reason for her redundancy was insufficient to shift the burden. The ET said that this was not enough to suggest that Mr Karir did commit “not merely could have committed”, the discriminatory act.
The ET had sympathy with Mrs Connor’s position and commented that the redundancy process was handled poorly. It nevertheless found that it was a genuine redundancy situation.
Mrs Dixon
Mrs Dixon’s claim of unfair dismissal succeeded. The ET found that Mrs Dixon’s role and the new role were sufficiently similar. There was therefore no genuine redundancy situation.
The judgment is available here
Mrs L Connor and Mrs C Dixon v Carpetright plc (in creditors’ voluntary liquidation): 3202284/2018 and 3202545/2018