Redundancy and selection criteria
The recent case of Mrs G Long v British Gas Trading Limited (British Gas) highlights the importance of ensuring fair selection criteria in a redundancy process.
Mrs Long worked as a solicitor for British Gas from January 2012 until July 2019. She started maternity leave in May 2016, returning to work in September 2017 on a part-time basis. At the relevant time, she was the mother of two-year-old triplets and a son with significant additional needs.
Mrs Long made a number of complaints, which included:
- Unfair dismissal.
- That the dismissal was discriminatory.
- Being treated less favourably due to her part-time status.
British Gas denied the complaints and stated that Mrs Long was dismissed fairly on the grounds of redundancy.
Details of case
Mrs Long returned from a period of maternity leave in September 2017. On her return to work, her line manager was Sarah Hartnell. British Gas carried out annual performance reviews, based on ‘custom and practice’. It was usual practice that, in respect of employees absent for the majority of a given year, the company capped the overall performance rating at ‘Achieving’.
Mrs Long’s December 2017 performance review was glowing: she received an overall rating of ‘Exceeding expectations’. However, because Mrs Long had been on maternity leave for 254 days in 2017, her performance rating was capped at ‘Achieving expectations’.
On her return from maternity leave, Mrs Long worked as one of two Intellectual Property (IP) lawyers. The work was divided between herself and her colleague, Lucy Cawker, who worked full-time.
In June 2018, Ms Cawker resigned. From September 2018 until March 2019, Mrs Long was the sole IP lawyer. She continued to work three days a week, but was also responsible for all the IP work previously undertaken by Ms Cawker, in addition to her previous workload. In March 2019, an additional solicitor was recruited, MP, who was male and worked full-time.
In January 2019, Ms Hartnell spoke with Mrs Long about under-performance in her 2018 end of year performance review. She said that she considered Mrs Long’s focus on getting to completion was lacking. Mrs Long was rated ‘Below expectation’ and was placed on a Performance Improvement Plan (PIP).
Risk of redundancy
On 6 June 2019, Mrs Long was informed that she was at risk of redundancy. She was in a pool of two with her male counterpart, and one was to be made redundant. There was no evidence that any employees or representatives were consulted about the selection criteria to be used.
The selection matrix used by Ms Hartnell contained the instruction that if an individual has been on maternity leave or sick leave for the greatest part of the two performance cycles and their performance rating was therefore capped at ‘Achieving Expectations’, the performance rating assigned must be from the year previous to the absence. However, Ms Hartnell used Mrs Long’s assessment from 2017, rather than the 2016 performance rating.
Dismissal and appeal
Mrs Long’s dismissal was confirmed in a letter in July 2019, which she appealed. A telephone meeting about her appeal took place in October 2019 and the appeal was dismissed by letter a month later.
Employment tribunal (ET)
Mrs Long listed a number of matters for the ET to consider regarding her dismissal and sex discrimination. These included:
- Applying a discriminatory criterion by using Mrs Long’s capped performance rating from 2017.
- Operating a discriminatory performance capping policy.
- Various e-mails between Ms Hartnell, Ms Hartnell’s manager and Mrs Long, which indicate that Mrs Long’s part-time worker status was an issue of concern.
In considering all the matters put forward, the ET considered that the company was not able to show that there was no discrimination in the decision to dismiss. The panel concluded that Mrs Long was treated less favourably than MP, the full-time male worker in the selection pool, which resulted in Mrs Long’s dismissal.
The ET also concluded that Mrs Long had been unfairly dismissed. In coming to this conclusion, the ET had regard to the following:
- There was no consultation with employees in relation to what selection criteria should be applied. The ET considered that some thought should have been given to the specific criteria to be used where a pool of two included one long serving employee and another who had been recently hired.
- The company had breached its appraisal policy by using scoring from Mrs Long’s 2017 appraisal, rather than 2016. The use of the wrong criteria was not remedied on appeal.
- Ms Hartnell gave no consideration to Mrs Long’s progress once she was placed on a PIP and considered that she was always going to score lower than MP.
Therefore, the ET held that Mrs Long’s complaints of sex discrimination and unfair dismissal were well founded and succeed. They also found that she had been treated less favourably because she worked part-time.
Summary and advice
The amount to be awarded to Mrs Long with regards to her successful claims is still to be determined at a remedy hearing.
Employers need to ensure that the selection criteria used as part of a redundancy process is as fair as possible, in order to minimise the risk of claims. Acas recommends that:
- Employers should try and agree the selection criteria with employees, as part of the consultation.
- Criteria should be as ‘objective’ and ‘measurable’ as possible and not affected by personal opinions.
Where the scoring could be affected by an employee’s absence during the assessment period, employers should try to minimise any disadvantage, without unfairly disadvantaging other candidates.
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