Case Study: Defending Claims of Age Discrimination and Unfair Selection for Redundancy

How Fiona Martin, expert Employment Law solicitor based in our Haywards Heath office, successfully defended claims of age discrimination and unfair redundancy.

The situation

Greenleaf is a large independent travel agents. Jeremy, the HR Director, had taken redundancy legal advice from an HR Consultant. This was to make a senior member of the management team, Harry, 62 years of age, redundant.

Harry had been furloughed. Despite being offered a redundancy package which was significantly higher than statutory redundancy, he had instructed solicitors who were alleging age discrimination. He also claimed that he had been asked to work while on the Furlough Scheme. He wanted to go and work for a competitor despite having post-termination restrictions in his contract of employment. The Managing Director had already agreed to release him from these.

Harry wanted a much higher settlement and argued that he was owed additional bonus money and pay rises. He also argued that he should have been offered a lower status job of Operational Director as suitable alternative employment. He also had complaints about the redundancy process as he had not been offered the right to appeal his redundancy.

What Martin Searle Solicitors did

Fiona obtained all the paperwork and spotted that the Furlough Agreement drafted by their HR Consultant was defective. It referred to Harry staying on Furlough until the scheme ended, unless he was either brought back to work or his eligibility for the scheme ended. There was no mention of redundancy being a reason for the furlough scheme to end.

It had just been announced that the Furlough Scheme was to be extended until 31 October 2020. Fortunately, the current enhancement offered was high enough to cover his salary until that date. He had already been offered a Settlement Agreement which was being checked by his independent solicitor.

Fiona advised that his letter of complaint should be treated as his appeal to his redundancy. This would be the quickest way to resolve this matter rather than hearing his grievances. This also rectified the HR Consultant’s redundancy dismissal letter which failed to give Harry the right to appeal his redundancy.

Harry’s age discrimination claims were not detailed or specified nor did he give detail as to why he thought the redundancy process had been predetermined. Fiona wrote letters on behalf of Jeremy asking Harry for more details to ensure that his allegations were properly investigated. Fiona also advised that the company could sue their HR Advisor for professional negligence, in relation to any breach of contract claim due to their badly drafted Furlough Agreement.

Fiona advised that Harry’s redundancy dismissal on the given date should go ahead as there was no duty to take away a less senior employee’s offer of suitable alternative employment to offer it to Harry. The enhanced redundancy payments already agreed could be paid because if Harry took matters further, he would have to give credit for this.

Alison Lyon, one of our firm’s HR Consultants, chaired and took notes at the appeal which took place virtually due to the lockdown. Fiona prepared all the relevant documents concerning the redundancy process. The outcome was provided by another director, Cynthia, with Fiona’s legal guidance. None of Harry’s appeal points were upheld. An apology was given for the failure to initially offer an appeal process but this appeal now rectified this.

The result

A Settlement Agreement was offered with enhanced redundancy of a further £2,190, over and above the enhancement already given. Harry’s solicitor did not notice the breach of contract in relation to Harry’s Furlough Agreement.

The directors were extremely relieved. They had been concerned about the additional compensation they would have to give Harry. Also, they needed to diversify their business as certain parts of their business were doing well in the pandemic. This restructure and Harry’s redundancy had been part of this plan.

For expert advice defending claims of Age Discrimination and Unfair Dismissal in the Employment Tribunal, contact our Employment Law solicitors on 01273 609911, or email info@ms-solicitors.co.uk.