Wayne Norman was made redundant from Lidl during a restructuring, which managers suggested was due in part to him not having a degree or qualification.
Norman argued at tribunal this was indirect age discrimination as people in his age bracket (over 60) were less likely to have a qualification than other age groups.
The tribunal ruled that the managers responsible for the redundancy process had unfairly applied this criteria to Norman, and also found he had been unfairly dismissed as the redundancy process did not allow him to contest his scoring in the redundancy selection criteria.
Jane Hallas, head of team and solicitor at HR and employment law consultancy WorkNest, told HR magazine this showed the need to train managers in how to apply redundancy selection criteria.
She said: “This case highlights the importance of HR managers ensuring that those involved in scoring in a redundancy selection process understand what they are doing and why.
“Scorers need to be able to substantiate their scores and explain to the employee how they have been derived. This enables those being scored to challenge the scores – an important part of consultation.
“Here the dismissal was unfair because there was no explanation as to the basis for the scores so the claimant was unable to properly challenge them.”
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Norman was employed as one of three senior construction consultants at Lidl’s regional distribution centre in Doncaster for 23 years.
In early 2023, the company underwent restructuring, which proposed to make approximately 40 employees at Norman’s office redundant. This included reducing the number of senior construction consultants to one per regional distribution centre.
Managers were briefed on the process via Teams, and handed a Q&A document for when they informed employees of the redundancies.
Norman’s team was informed about the possibility of redundancies in a group meeting. The team was provided with the scoring criteria that outlined how individuals would be selected for redundancy – which included scores from a low proficiency of zero to a high proficiency of four for experience, knowledge, skills, overall performance, and disciplinary record – and told they would have the chance to challenge their scores. Team members were also informed that they could apply for newly created facilities positions.
Liam Schofield, regional head of property, and Robert Beaumont, the regional property director, scored each candidate individually and then met with HR to agree on a shared score.
Their collective scores for Norman amounted to 17 – four for experience; three for knowledge; three for skills; three for overall performance and four for disciplinary record.
Schofield and Beaumont were told to destroy notes with their reasoning after the process was completed.
Later, Norman was alerted of his score and told he had been provisionally selected for redundancy, which the employment law department emphasised was a provisional decision and a consultation would identify ways in which this might be avoided.
He was provided with job descriptions for two other roles that required a candidate to be degree educated in a technical or building services discipline or to possess an equivalent qualification or significant related experience.
Before his consultation took place, the tribunal heard that Norman was told by another employee, they had been given the one remaining senior construction consultant position. The other employee was awarded 18 points.
Norman called Schofield to ask if he could still challenge his score, which he was told he couldn’t. His consultation was due to happen the following Monday, but he told Schofield “I simply cannot see the point”, as he was unable to challenge his scores.
Schofield tried to encourage him to apply for the other roles. Norman said he did not want to apply for the other roles as he would not be qualified, and was determined to remain in the senior construction role.
Eventually, Norman was convinced to attend his consultation, where he read out a list of criteria that challenged his scoring. Schofield talked through the reason for his scoring, and told him he had been scored down for not having “relevant construction qualifications” as he did not have a construction degree.
Norman told the tribunal he then commented that all of the advertised positions he had been sent had a degree requirement but Schofield said he did not believe this was the case. He then made clear Norman’s scores would not change.
In a later meeting, which the tribunal noted lasted six minutes, Norman was officially informed of his redundancy by Beaumont, who read from a script.
Later Norman told the head of regional HR, Marie Goodburn, he felt the comment Schofield had made about him being scored lower due to not having a degree was “hurtful and discriminatory” due to the proportion of people of his age group who had degrees.
When looking at evidence, employment judge Maidment noted the respondents were “inconsistent” in the reasoning behind the scores they gave Norman. The judge noted the reasons were based on a recollection of events that impacted his scores, rather than on notes taken at the time of problems arising with his skills or performance.
Schofield maintained at tribunal that the other employee had been awarded the job over Norman due to the knowledge he gained from his construction qualification, which Norman lacked.
The tribunal also noted that the application of the redundancy selection criteria was “at times cursory and not clearly based upon objective evidence”.
Maidment said the managers asked to complete the redundancy selection “did not fully understand the nature of the task they were being asked to complete or the degree of analysis it might perhaps be subjected to if challenged”.
He pointed to the redundancy scoring criteria of having a degree, which he said was a fair criteria but not fairly applied to Norman, who was over 60, compared with the other two candidates, who were in their thirties.
The tribunal accepted those over the age of 60 were less likely to have a degree or another qualification than those in their 30s, and therefore Norman faced indirect age discrimination.
Maidment also ruled that the six minute meeting, in which Norman was informed his redundancy was confirmed, was a “tick box meeting”, not a consultation as they had described, and the failure to conduct a reasonable process of consultation was sufficient to amount to unfair dismissal.
Nonetheless, Maidment commented that the case was not a “sham” that had been designed to keep one worker above another older worker. He acknowledged there was a “genuine attempt to assess each individual against the relevant criteria, but that there were “significant defects” in the consultation process where Norman could have been given opportunity to ask for the reason behind his scores or argue for an uplift.
Compensation will be awarded at a later hearing.
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Gemma Clark, associate solicitor at law firm Wright Hassall, explained employers should ensure their redundancy selection criteria does not indirectly discriminate against employees.
Speaking to HR magazine, she said: “The case highlights the importance of employers following a fair redundancy process when seeking to rely on this being considered a fair dismissal under section 98 of the Employment Rights Act 1996.
“One of the key factors, as showcased by this case, is creating and correctly administering an objective scoring matrix. It's crucial that the criteria used do not inadvertently disadvantage any group of individuals who possess protected characteristics under the Equality Act 2010, which could lead to indirect discrimination claims.”
Clark added redundancy criteria should be recorded and applied equally to all candidates.
She continued: "To mitigate the risk of discrimination claims being raised following a redundancy, the scoring matrix should be objective and consistently applied to all at-risk employees, with more than one person involved in the scoring to mitigate against bias.
“Additionally, employees should have the opportunity to review and challenge their scores, with their concerns genuinely considered. Documenting how scores are reached is essential, as it allows employees to make informed decisions on challenging their scores and provides transparency.
“Notably, the tribunal in this case found Lidl's destruction of their notes problematic, weakening their defence.”
