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.