Mr Tattersall was one of five members of the company's senior management team. He was made redundant and went on to bring an unfair dismissal claim.
The employment tribunal found in his favour. The decision rested partly on the way in which the company had gone about selecting Mr Tattersall for redundancy. The tribunal found that it was based on subjective criteria (which role could be lost with least damage to the company?) and solely on the views of the company's directors. The tribunal concluded, for a number of reasons including the pool for selection and internal appeal process, that the dismissal was unfair. However, compensation was reduced by 20% to reflect the chance that Mr Tattersall would have been dismissed via a fair procedure (Polkey).
The company appealed but the Employment Appeal Tribunal (EAT) upheld the unfair dismissal. Crucially though, the EAT disagreed with the tribunal's criticism of the company's subjectivity during the selection process. Just because criteria are matters of judgment, the EAT said, it doesn't mean that they can't be assessed in a dispassionate or objective way. The tribunal's suggestion that a criterion could only be valid if it could be 'scored or assessed' was concerning because it could lead to selection being reduced to a box-ticking exercise.
The upshot is that even where criteria involve a degree of judgment, that's not necessarily fatal particularly perhaps where (as in this case) the company is small and in serious financial difficulty. While the combined flaws in the process lead to Mr Tattersall's unfair dismissal being upheld, the EAT overturned the Polkey decision. The deduction should be significantly higher than 20%, it said.
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