Length of Service Redundancy Criteria Ageist, ET Rules

A redundancy process that includes length of service or seniority as a selection criterion is always likely to be vulnerable to challenge on ageism grounds. In one case, an international travel operator fell into precisely that trap (Irving v TUI Airways Ltd).

The operator needed to cut its headcount when faced with the double whammy of the COVID-19 pandemic and a winter downturn in business. In the ensuing redundancy process, various criteria were adopted by which those who were to lose their jobs would be selected. One of them afforded preference to those who had achieved the greatest seniority – in other words, length of service.

A flight cabin crew member, who was aged 42 and had 20 years' service with the operator, was one of those selected for redundancy. In lodging an Employment Tribunal (ET) complaint, she pointed out that all those cabin crew who retained their jobs at the airport where she worked were aged over 45 and had at least 25 years' service with the operator behind them.

Upholding her claim, the ET noted that the length of service criterion was originally intended to operate as a tiebreaker between those employees who scored equally under the other criteria. It had been adopted as such with the encouragement of the employees' trade union.

In the event, however, the application of the other criteria had a neutral effect on scoring and length of service became, de facto, the sole criterion for selection at the relevant airport. Managers rigidly maintained the fiction that the length of service criterion was only to be used as a tiebreaker and thus persisted with a manifestly discriminatory selection process without attempting to address employees' concerns.

Whilst recognising that it can be laudable to reward loyalty and experience, and to retain a stable workforce, the ET found that the way the length of service criterion was used was not a proportionate means of achieving a legitimate aim. It had a disproportionately adverse impact on the woman and other younger cabin crew members, in particular those aged under 45.

The woman's indirect age discrimination complaint was upheld and the operator was ordered to pay her £6,000 in compensation for injury to her feelings. She was further awarded £594 in respect of a payment in lieu of notice that she should have received. She also succeeded in an unfair dismissal claim but was awarded no compensation under that head. That was because the enhanced redundancy payment she received, combined with her success in finding alternative work, had mitigated any loss of earnings.