How employers can protect themselves against unfair dismissal
claims when selecting employees for redundancy from a pool has been
highlighted in a recent case.
Peter Jones in our
Employment Team explains.
The Employment Appeal Tribunal judgment in Nicholls v Rockwell
Automation Ltd has provided some welcome clarification as to
what Employment Tribunals are supposed to consider when deciding on
the fairness of a dismissal as a result of redundancy pool
selection.
The original Employment Tribunal decided that, whilst the
employer's procedure was fair and there was a genuine
redundancy situation, two of the scoring criteria used to make the
selection (product skills and flexibility) were not capable of
objective assessment, rendering the dismissal unfair. The EAT
overturned this decision, stating that the Tribunal had established
that a fair system of selection had been applied and that, as there
were no signs of unfairness, it was not for the Tribunal to conduct
a detailed evaluation of individual scores applied in the
selection.
The EAT underlined that Tribunals should not substitute their own
view for that of the employer but should determine whether marks
allocated were reasonable. The EAT judgment also reiterated that
redundancy selection scoring is a matter of managerial judgment
that should not be reduced to a tick box exercise.
However, it is clear that the reason for the employer having an
unfair dismissal finding against it in this case was due to some
ambiguity about the basis for the scoring. This resulted in a time
consuming and potentially costly appeal, which, although
successful, might well be a step too far for many employers.
What should employers do?
Pool selection can be a difficult and divisive process,
particularly where appraisal, absence, performance and training
information is either unreliable or missing. In some cases, the
lack of reliable management information means that it may be better
to go through an interview selection process, with more than one
interviewer and standardised, role specific questions.
If pool selection is appropriate, to minimise the risk of selection
being alleged to be a result of a personal grudge or similar, it is
advisable to rely as far as possible on objective, evidence based
selection and scores should be moderated by more than one manager.
Notes of the reasons for particular scores being applied should be
made and kept, particularly where an aspect of scoring involves a
degree of subjective assessment.
Provided that there is no evidence of the scoring being unfairly
manipulated against a particular employee and it is conducted in
good faith, legal challenges should be minimised. In particular,
employers should rely as far as possible on the groundwork of
reliable and up-to-date appraisals and absence, disciplinary and
training record keeping.
As in recruitment processes, a measured, reasonable and well
documented approach, including consideration of reasonable
disability adjustments and other potential discrimination issues,
can make all the difference if you are called to account for your
actions in the cold light of the Employment Tribunal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.