TUI discriminated against employee during redundancy process

The law on redundancy can seem complex and demanding to an employer. When making staff redundant, employers need to ensure that they follow a fair process that recognizes an employee’s rights while also seeking to achieve the organization’s goals in making the redundancy in the first place (e.g. saving cost). Throughout the redundancy process, the employer will need to consider the applicable law which typically involves, amongst other things, an obligation on the employer to conduct a fair consultation before terminating an employee’s contract through redundancy.  It is also extremely important that employers remember that discrimination law pervades all decisions and so employers must be alert not to discriminate when making redundancies. 

A recent case which highlights the risks of not following a fair legal process is the case of Mrs K Irving v TUI Airways Ltd. In this case, an Employment Tribunal has found that a cabin crew member was unfairly dismissed and discriminated against after she was chosen for redundancy based on her length of service.

The case involved Mrs Karen Irving who had been part of the cabin crew for TUI Airways based at Glasgow Airport for over 20 years.

As a result of a lack of winter flights during the pandemic, TUI met with trade union representatives to discuss winter staffing levels, and to look at cost savings, which included employee redundancies.

In June 2021, an email was sent to all cabin crew staff across the organisation informing them of a formal redundancy consultation process, and the tribunal heard it was made clear that the Glasgow base would require redundancies.

TUI consulted with the trade union and devised a selection process, described as a ‘productivity tool’. This process included an analysis of:

1. Individual productivity
2. Attendance records
3. Length of service
4. Live sanctions.

The tribunal said the union pushed for length of service to be included in the process, but that, in trying to implement the productivity tool method, a number of challenges arose with the selection process.

During the process, it became clear that staff with at least 25 years of experience were chosen to stay. Meanwhile, younger staff members were helped by other company policies and also kept their jobs. This approach caused Mrs Irving to become an inbetweener as she was not senior enough to avoid redundancy and too old to enjoy the policies that helped her younger colleagues.

The selection process was then paused because of a collective grievance raised by the union about the selection criteria, which saw decisions taken on the basis of length of service alone.  

During the grievance meeting, a trade union representative highlighted that only two or three staff met the criteria of having live sanctions or absence triggers, and questioned the length of service parameter. The union also said that the data about sanctions and absences was not up to date. 

TUI responded with a letter stating the outcome of the grievance, which confirmed that the allegation that staff were being identified on length of service alone, was not upheld.

In September 2021, Mrs Irving was named as one of the 37 and during the meeting she said that she felt she was being discriminated against because of her age. Mrs Irving then brought claims in the Employment Tribunal for unfair dismissal, indirect age discrimination and breach of contract.

Whilst the tribunal found that there was a genuine business reason for the redundancy, and that staff had been given a substantial advance warning, the quality of the consultation was lacking. Judge R Mackay confirmed that:

1. TUI failed to engage meaningfully with either Mrs Irving or the union on the fact that length of service became the de facto selection criterion, rather than being used as a tiebreaker as it was intended. 
2. The consultation was lacking as the trade union and Mrs Irving both raised concerns about the criteria deployed and the fact that length of service became the sole or predominant criterion in identifying employees.
3. TUI did not address in any meaningful way the use of length of service, nor did TUI investigate the extent of which service had in fact become the sole or predominant factor at the bases concerned during the grievance hearing.
4. A review of the data sources had not taken place as highlighted in TUI’s grievance outcome letter.

Mrs Irving was awarded nearly £7,000 for indirect age and sex discrimination, injury to feelings and breach of contract. The tribunal will decide the remedy for unfair dismissal at a further hearing.

As specialists in employment law, we are on hand to guide you through the redundancy process, from initial planning through to the implementation stages. If you are concerned by any of the issues raised in this article and would like advice to manage the risk for your business of making staff redundant, please do not hesitate to contact the Employment Team at Machins Solicitors LLP.