Employees must get enough information to challenge redundancy scoring
A recent judgment of the Employment Appeal Tribunal serves as a timely reminder to employers that fair consultation over redundancy must include proper consultation over any scoring that has been carried out under redundancy selection criteria.
The days of 'last in, first out' as the basis for redundancy selection have effectively been ended by laws prohibiting age discrimination, as this method of selection is likely to disadvantage younger employees. Therefore, in accordance with good industrial practice, many employers now use a redundancy selection scoring system that takes into account a range of factors such as skills, attendance and suitability for remaining work.
It has never been the function of employment tribunals to undertake their own re-marking of the employer’s scores, but this case makes it clear that if an employee does not get a proper opportunity to challenge their scores, this flaw in the redundancy consultation process can render an otherwise fair dismissal unfair.
Therefore, employers should firstly consult with all affected employees in the pool for selection for redundancy over the suitability of the proposed criteria. This should be done before any marking is carried out. Next, the employer should notify those provisionally selected for redundancy of their detailed scores under the criteria and the score they would have needed to obtain in order to be 'safe'.
It is also advisable to provide not just a score under each category, but an explanation of how the score was arrived at. This can usually be achieved by including a 'key' with the criteria, setting out the basis on which points are awarded.
The EAT confirmed that, in order to be fair, the redundancy process must involve a fair consultation which gives employees who are ‘at risk’ a meaningful chance to challenge their scores and be given explanations for them. It is therefore clear that where an employee has not been given all of the above information and as a result has not had the opportunity to effectively challenge their scores if they wish to do so, the employer will be at risk of unfairly dismissing the employee.
The decision re-emphasises the importance of not only getting the selection criteria correct, but also of applying them consistently and objectively. Where employees query their scores under a scoring matrix, they are entitled to be told the reason why they received the marks they did. Therefore employers need to be careful that the criteria and scoring used are capable of being justified.
The EAT also made the point that the more subjective the selection criteria are, the more stringently the requirement to give clear explanations for the scores will be applied.
This decision is another example of the fact that employers who lose unfair dismissal cases more often lose because they followed an unreasonable procedure and more rarely lose because the employment tribunal found the decision to dismiss unreasonable.