The Employment Appeal Tribunal (EAT) has considered what employers have to do to ensure a fair selection process in redundancy dismissals.
It is notoriously easy for an employer to fall foul of the law when carrying out redundancies. This is because the requirements of a fair procedure in a redundancy dismissal are more exacting than for other types of dismissal.
The broad principles for a fair redundancy dismissal might look straight forward, namely:
- give as much notice as possible of impending redundancies
- establish objective selection criteria
- where there is a trade union, seek to agree any selection criteria
- ensure selection is done fairly in accordance with the criteria
- ensure there is adequate consultation with employees
- consider any representations made (either by employees themselves or their representatives)
- consider the alternatives to redundancies including offering alternative employment
However, in practice employers often unwittingly get it wrong and can be surprised to find themselves on the receiving end of an unfair dismissal finding from an employment tribunal.
In the case of Pinewood Repro Ltd T/A County Print v Page, a tribunal in Manchester found that the employer had failed to conduct adequate consultation with the claimant, Mr Page, because they had failed to provide him with an adequate explanation of why he had received lower scores than the two other people in the pool for redundancy. The Employment Appeal Tribunal (EAT) upheld the tribunal's finding of unfair dismissal.
Mr Page worked as an estimator in a printing business for 23 years. Following the loss of a major contract his employer embarked upon a round of redundancies. It agreed with its trade union that employees would be selected for redundancy following scoring under a matrix with the headings: attendance, quality, productivity, abilities, skills, experience, disciplinary record and flexibility.
Mr Page was placed in a pool with two other employees. They each received a copy of the scoring matrix together with the potential range of marking and the standards and qualities that each level represented. Although the scoring was close, Mr Page scored lowest and was informed that he had been provisionally selected for redundancy.
He was invited to attend a consultation meeting, prior to which he had not been given his actual scores, but he did prepare a list of questions for the meeting, which included: "Why was I chosen from a pool of three?" and "Can I see the scoring sheets for the selected criteria?" He was provided with his actual scores at the meeting.
He took particular issue with his scoring. A further meeting was arranged and he prepared a list of nine questions and statements raising queries in relation to his own marking, in particular, in relation to the category of abilities, skills and experience.
Mr Page was given a letter purporting to respond to his earlier questions, which stated: "The points you made are noted. We believe that the scores given by the assessors are reasonable and appropriate".
The tribunal noted, however, that the employer, ". did not explain how the scores...had been arrived at. They simply said they were reasonable and appropriate." The tribunal was further critical of the fact that no comments had been made on any of the scoring sheets under the column providing for 'justification/comment/example of performance'.
The EAT decision
The EAT stressed that fair consultation during a redundancy process (absence of which will result in a finding of unfair dismissal) involves giving an employee an explanation for why he has been marked down in a scoring exercise.
The EAT commented that Mr Page had not been able to challenge his scoring, but if he had been given the opportunity to do so and the markers had considered those comments, then it was unlikely that a tribunal would have been able to interfere with their decision.
A tribunal would have been prevented from carrying out a microscopic analysis of the scoring system or points awarded in such circumstances because there would have been adequate consultation.
So, in summary this case makes it clear that:
- an employee should be given a proper opportunity to fully understand the matters under consultation
- an employee should be able to express their views on the subject
- this will include being given sufficient information to be able to challenge the scores given in any redundancy selection exercise. The EAT commented in this case that:
"In the modern climate, much of this information would hopefully have been available to an employee via a previous appraisal process."
- the employer needs to give genuine consideration to any views expressed by the employee.
The employer found itself on the back foot in this case because it was ultimately unable to justify its selection of Mr Page for redundancy by showing its marking of him was accurate: no one had ever raised any issues with him about his work and there was no regular appraisal system.
Equally, it could not show its marks in respect of the other two candidates in the pool were accurate due to the lack of appraisal system.
Where an employer uses a more subjective criterion such as 'flexibility', it needs to be very sure it can back up its scoring with evidence, and this evidence should be provided if challenged by the employee.