ARTICLE
2 August 2012

Subjectivity In Selection Can Be OK - Mitchells Of Lancaster v Tattersall

Mr Tattersall was one of five members of the company's senior management team.
United Kingdom Employment and HR

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.

Thomas Eggar LLP is a limited liability partnership registered in England and Wales under registered number OC326278 whose registered office is at The Corn Exchange, Baffin's Lane, Chichester, West Sussex, PO19 1GE (VAT number 991259583). The word 'partner' refers to a member of the LLP, or an employee or consultant with equivalent standing and qualifications. A list of the members of the LLP is displayed at the above address, together with a list of those non-members who are designated as partners. Regulated by the Solicitors Regulation Authority. Lexcel and Investors in People accredited.

Thomas Eggar LLP is not authorised by the Financial Services Authority. However, we are included on the register maintained by the Financial Services Authority so that we can carry on insurance mediation activity which is broadly the advising on, selling and administering of insurance contracts. This part of our business, including arrangements for complaints and redress if something goes wrong, is regulated by the Solicitors Regulation Authority. The register can be accessed via the Financial Services Authority website. We can also provide certain further limited investment services to clients if those services are incidental to the professional services we have been engaged to provide as solicitors.

Thesis Asset Management plc, our associated financial services company, provides a comprehensive range of investment services and advice. Thesis is owned by members of Thomas Eggar LLP but is independent of and separate to it. No lawyer connected with Thomas Eggar LLP provides services through Thesis as a practicing lawyer regulated by the Solicitors Regulation Authority. Thesis is authorised and regulated by the Financial Services Authority. Thesis has its own framework of investor protection and professional indemnity cover but Thesis clients do not enjoy the statutory protection of solicitors' clients.

The contents of this article are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions.

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