In order to reduce overheads the employer needed to reduce the headcount of its field service engineers, of which the Claimant was one, from 11 to 10. In order to make its selection the employer relied upon detailed redundancy selection criteria to include disciplinary records; performance and flexibility; skills and ability; and competency in the role.

The marking process was carried out by a manager and checked by another who managed the employees on a daily basis.  The Claimant was selected for redundancy on the basis his score was the lowest and he was subsequently dismissed after further consultation.

The Employment Tribunal accepted that there was a genuine redundancy situation and the procedure that was adopted was fair and reasonable.  It did however find the Claimant’s dismissal was unfair due to his selection.  Whilst the Employment Tribunal acknowledged that it could not substitute its own view for that of the employer in relation to the Claimant’s selection, it indicated that having fully considered the marks given to the Claimant those marks were lower than they should have been. The analysis carried out by the Employment Tribunal involved a detailed consideration of individual items of the scoring.

The Employment Tribunal made its findings despite it being well established that it is not for the Employment Tribunal to investigate the facts underlying the dismissal and reach its own conclusions (which it also expressly acknowledged it should not do); nor is it open to the Employment Tribunal to carry out an over-minute investigation of the selection process.   An Employment Tribunal should be looking at whether an employer has acted reasonably taking into account all the circumstances.

Appeal to the Employment Appeal Tribunal (EAT)

The employer appealed to the EAT on various grounds including the fact that the Employment Tribunal had during the proceedings substituted its own assessment of the Claimant for that of its own; and it had engaged in a detailed analysis of certain items of scoring when deciding if it was reasonable for it to dismiss the Claimant.

The EAT, when considering the appeal, stated that once the Employment Tribunal had established a fair system of selection had been applied without overt signs of unfairness, it should not have then embarked upon a detailed critique of individual items of scoring.   In addition, the EAT considered that the Employment Tribunal had substituted its views for that of the employer.  As such it found that the Claimant had been fairly dismissed.

Comment

The EAT has reconfirmed that an Employment Tribunal should not automatically examine a redundancy score in a selection process. Employers however should not take this as meaning scores would never be scrutinised.  Employers must still ensure that there is a good system in place for assessing employees against the criteria.   If there are apparent inconsistencies in the application of the criteria then an Employment Tribunal is likely to look at how the score was arrived at, resulting in those who have marked the employee giving evidence.  This means employers must always ensure that they are able to justify the score arrived at during any redundancy scoring process.

Helen Taylor, Senior Associate 

Contact Information

fgmedia@floydgraham.co.uk

+ 44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.