In a redundancy situation the employee must have his scoring explained and his comments seriously considered

Pinewood Repro Ltd v. Page [2010] UKEAT 0028_10_1310

www.workrep.co.uk

    Helping You     About     Links     Contact     Site Info     HOME

• In a redundancy situation an employee must receive an explanation for his score.
• The employee's comments against his selection need to be taken seriously.
• To use a Polkey argument the employer needs to provide 'cogent evidence'. Using a percentage possibility of being dismissed was "completely fallacious".

An employee selected for redundancy in a less than transparent process had previously been accused of leaking company information to a competitor. Although this accusation was dropped it obviously remained the 'elephant in the room' as to a possible explanation for the selection. It is not unknown for employers to attempt to get rid of unwanted workers by way of a sham redundancy. Although the company needed to make redundancies, there was no obvious need for this among the group of three 'estimators' who all had enough business to conduct.

The ET found that in the selection, as the marks were close, if there had been an opportunity to challenge these then there was a reasonable chance the employee would have kept his job. This defeated the employer's Polkey argument (that because an employee would have been dismissed in any case, then no damage was done to him by a flawed procedure).

The ET in fact rejected most of the basis of the employer's arguments whilst accepting that there was a real need for redundancies in other departments of the company. The ET came close to accusing the company of fixing the scoring and of concocting its evidence, without actually accusing it of lying to the tribunal. The tribunal failed to believe the employer because its evidence was strangely of a piece from two different witnesses, even as far as repeating incorrect information such as the witness worked strictly to his hours of 9-5.

In dismissing the employer's appeal the EAT said that the employer should have responded to the worker's request for information as to his flexibility, especially as the supposed issue of his timekeeping had not been previously raised with him. That the employer did not provide any comments on the scoring sheets was also evidence of the lack of information provided. The EAT also said that it was the ET's job to decide whether an employee was given a fair opportunity to understand the consultation and express his views.

Previous cases were quoted:

Waite LJ in British Aerospace plc v Green [1995] IRLR 433 whereby: ". ... if a graded assessment system is to achieve its purpose it must not be subjected to an over-minute analysis. That applies both at the stage when the system is being actually applied, and also at any later stage when its operation is being called into question before an industrial tribunal."

Lord Johnston in John Brown Engineering v Brown [1997] IRLR 90 said:
"the employers withheld both the individual marks scored by those selected for redundancy and also those that applied to the comparators. The selection process involved an appeals procedure, and essentially the argument that was presented on behalf of the employees before the industrial tribunal, which it sustained, was that this was a sham in the absence of sufficient material, in the sense at least of individual scores, available to each employee so that he could at least complain as to his own assessment."

It was decided that individual consultation is not essential but rather a fair process where the selection can be contested either by the worker or his union (here the worker did not belong to the union).

HHJ Peter Clark (EAT) Mugford v Midland Bank plc [1997] IRLR 208 said:
"Where no consultation about redundancy has taken place with either the trade union or the employee the dismissal will normally be unfair, unless the industrial tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case.........It will be a question of fact and degree for the industrial tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair."

The Polkey discussion: Software 2000 Limited v Andrews [2007] IRLR 568 (Elias J). Fairness of a consultation process: Hodgson J in R v Gwent County Council [1988] Crown Office Digest p19: (a) consultation when the proposals are still at a formative stage; (b) adequate information on which to respond; (c) adequate time in which to respond; (d) conscientious consideration by an authority of the response to consultation. The worker should thus be given a fair opportunity to understand the matters under consultation, be allowed to express his views and have them considered by his employer.

HHJ Levy in Rowell v Hubbard Group Services Limited [1995] IRLR 195 said: "There are no invariable rules as to what is to be done in any given situation; everything will depend on its particular facts."