Senior Art Director P Lancaster brought a Tribunal claim after being made redundant from TBWA Manchester after over 6 years’ service. Aged 50 and suffering from a panic and social anxiety disorder, he felt some of the criteria applied in the redundancy selection process unfairly disadvantaged him and claimed unfair dismissal, and disability and age discrimination. Chris Stack and Jenny Wotherspoon report on a case that went to appeal.
Who: Mr P Lancaster v TBWA Manchester
Where: Employment Tribunal
When: Judgment handed down on 14 June 2011
Mr Lancaster was employed by TBWA Manchester, a marketing and advertising agency, as a Senior Art Director from 24 February 2003 until 13 May 2009 when he was dismissed for redundancy at the age of 50. He suffered from a panic and social anxiety disorder which amounted to a disability for the purposes of the Disability Discrimination Act 1995 (DDA 1995).
Like most businesses, TBWA Manchester was affected by the global economic crisis and, in particular, the account that Mr Lancaster worked was put on hold meaning that a number of roles were placed at risk of redundancy. The Senior Art Director role was affected and Mr Lancaster was placed in a redundancy selection pool with two other Senior Art Directors.
They were each assessed against a range of redundancy selection criteria, including three criteria which focused on communication skills as follows:
1. ability to perform as a team player;
2. influence on performance and attitude to others; and
3. actively participating in company activities and improving the organisation's creative output.
(the "Communication Criteria")
Mr Lancaster was selected for redundancy and brought an Employment Tribunal claim for disability discrimination on the basis that the Communication Criteria placed him at a substantial disadvantage because of his disability and that it would have been a reasonable adjustment to remove the Communication Criteria. In the alternative he argued that all of the redundancy selection criteria used, which were subjective, placed him at a substantial disadvantage and that it would have been a reasonable adjustment to replace them in their entirety with objective criteria.
Mr Lancaster also brought claims for age discrimination, on the basis that he was 50 at the time of his dismissal, and for unfair dismissal.
The Legal Position
Under the DDA 1995 if an employer has any provision, criterion or practice (PCP) that places disabled employees at a substantial disadvantage then that employer has a duty to make reasonable adjustments to prevent that disadvantage. When considering what constitutes a reasonable adjustment one of the factors the employer should have regard to is whether or not making a particular adjustment would prevent the disadvantage suffered by the employee.
Whilst Mr Lancaster's claim was considered in accordance with the DDA 1995, the Equality Act 2010 essentially replicates the same position. Therefore, the decision is still relevant for employers.
The Employment Tribunal's Decision
When Mr Lancaster's claim was considered by the Employment Tribunal at first instance it was found that:
- the Communication Criteria placed Mr Lancaster at a lower score than others in the pool and resulted in his redundancy;
- however, if the scores relating to the Communication Criteria were removed from the total scores given to the three Senior Art Directors in the redundancy selection pool the result would have been the same: Mr Lancaster would still have received the lowest score and been selected for redundancy. Therefore, adjusting the criteria would not have removed the disadvantage faced by Mr Lancaster;
- there was no evidence to suggest that replacing all of the redundancy selection criteria with objective criteria, such as length of service, disciplinary record or sickness record, would have prevented Mr Lancaster from being selected for redundancy, therefore, this was also not a reasonable adjustment either.
- it is dangerous for an employer to use wholly subjective redundancy selection criteria. However, the Tribunal found that it is for employers to determine their own selection criteria and the position at risk was a senior level creative position, therefore purely objective criteria might not have been sufficient and, in these circumstances, the use of "subjective" criteria was not unfair.
- a witness had been called who gave evidence that the advertising agency was inherently "ageist", however, there were no grounds to find or infer age discrimination from this suggestion. The two other candidates in the pool were of a similar age in their late forties and there was no suggestion that Mr Lancaster had been treated less favourably.
- TBWA Manchester had not properly consulted with Mr Lancaster about his redundancy and had only made limited, if any, efforts to seek alternative work for him thus leading to a finding of unfair dismissal on procedural grounds. However, genuine and meaningful consultation would only have taken four weeks from the date of dismissal, therefore compensation was limited to four weeks.
The Employment Appeal Tribunal's Decision
The EAT agreed with the original decision of the Employment Tribunal and concluded that it had not erred in finding that there was neither disability nor age discrimination. In respect of unfair dismissal, it considered the Tribunal failed to assess whether, if there had been proper consultation, Mr Lancaster would have been offered and accepted alternative employment, therefore the case was remitted to the on this point for the original Tribunal to consider whether the compensatory award should have been increased.
Actions for Employers
- Employers are at liberty to choose the redundancy selection criteria that they consider are fair and appropriate in any given circumstances. However, Mr P Lancaster v TBWA Manchester serves as a useful reminder that employers must consider whether any of the criteria are discriminatory and, in the case of disability discrimination, whether the criteria will need to be amended as a reasonable adjustment to prevent a disabled employee from suffering a substantial disadvantage.
- However, the fact that an adjustment gives an employee "a chance" to avoid redundancy will not necessarily make the adjustment reasonable. The fundamental question is whether the adjustment would prevent the substantial disadvantage and this will need to be decided on the facts of each case.
- In most cases, employers should ensure that redundancy criteria are objective in nature, however, in some cases the Tribunal may be prepared to accept subjective criteria where the role is creative in nature and not easily assessed against subjective factors.
- In addition, Mr P Lancaster v TBWA Manchester highlights the importance of following a fair redundancy procedure including genuine and meaningful consultation with an employee about alternatives to redundancy and considering any suitable alternative employment.