Member L Taylor Tribunal Member L Millar Mrs K Irving v TUI Airways Limited — 2022

The claimant was a cabin crew member at Glasgow who was dismissed following a redundancy exercise. The tribunal found that redundancy was a genuine potentially fair reason for dismissal, but the selection process used at Glasgow and other bases relied in practice on length of service much more heavily than the respondent said it did. The tribunal accepted that the respondent had consulted with the trade union and the claimant, but found that it failed to address the central complaint that length of service had become the de facto sole or predominant criterion in the relevant pools, particularly at Glasgow, and that the witnesses did not meaningfully explain or verify the data they said had been used.

On unfair dismissal, the tribunal held that the redundancy itself was real, but the dismissal was unfair because the process did not satisfy the requirements of reasonableness under section 98(4) ERA 1996. The tribunal considered the Polkey guidance and found that, although consultation had been extensive, the respondent’s approach to selection was unfair because it persisted with a process it described as using length of service only as a tiebreaker when that was not how it operated in practice. The tribunal also noted concerns about the respondent’s failure to verify information from employee files at Glasgow.

The indirect age discrimination claim succeeded because the selection criteria for redundancy, applied to the Glasgow pool and other bases, put employees under 45 at a particular disadvantage and did so to the claimant, who was 42 with just over 20 years' service. The tribunal accepted that rewarding loyalty, retaining experience and maintaining a stable workforce could be legitimate aims, but held that the respondent had not shown the criteria to be a proportionate means of achieving those aims. It relied on the fact that length of service was not merely one factor among several, but in practice the determining factor in most cases, and the respondent had not engaged with that point during the process.

On remedy, the tribunal awarded £6,000 for injury to feelings in the lower Vento band, finding that the claimant had suffered distress and anxiety from the discriminatory process. It made no basic award because the claimant had already received statutory redundancy pay, and it made no compensatory award for loss of earnings because the tribunal found that, after set-offs for notice pay, redundancy payments and later income, there was no net financial loss on a 12-month basis. The breach of contract claim succeeded on a gross shortfall of £594.69 in notice pay, which was awarded separately. The indirect sex discrimination claim had been withdrawn by the claimant and was dismissed in the judgment.