The Employment Appeal Tribunal has held that when assessing the fairness of selection for redundancy, the marks awarded in the selection exercise should only be investigated in exceptional circumstances such as bias or obvious mistake. Tony Hyams-Parish considers this decision.
The Employment Appeal Tribunal has handed down its decision in Dabson v David Cover & Sons, which is authority for this proposition.
Mr Dabson was selected for redundancy as part of a reorganisation in which more than 20 people were made redundant. For this reason the collective consultation rules applied, which required the employer to consult with employee representatives. As it happened, no nominations for employee representatives were forthcoming so representatives were appointed by the company. Mr Dabson complained about this process. Mr Dabson was also not consulted individually and he said that this rendered the dismissal unfair. Finally Mr Dabson argued that during the scoring process there was a 'fatal inconsistency' in the marking in that he received different scores against competencies which were essentially the same and had he been scored correctly, he would have had the same scoring as a colleague. Despite Mr Dabson's complaints, the Employment Tribunal decided that the dismissal was fair.
On the issue of selection the Employment Appeal Tribunal stated that Employment Tribunals should never go beyond seeing whether the selection, including the marking was fair and should only investigate marking where there was an absence of good faith or obvious error. In practice, this limits the Employment Tribunal's task when looking at selection and means that once it is satisfied that the system for scoring is broadly fair, it should not need to dig further as this increases the risk that it will reach its own decision as to whether a particular score is correct, which is something it should not do. This case reconfirms the principle that the Employment Tribunal should not stand in the shoes of the employer or readily interfere with scoring decisions made by employers.
On the consultation issue, the Employment Appeal Tribunal upheld the Tribunal's decision that the consultation was 'as adequate as could reasonably be expected'. The court took into account that the duty under the collective consultation procedures was to consult employee representatives - not the employees. Despite it being normal practice for there to be individual consultation with employees, the process, as a whole, was considered to be fair.
If you would like to know more, please contact Tony Hyams-Parish, Head of Employment, in confidence and without obligation by emailing Tony or by calling him on 08450 990045, or speak to your usual contact in the Employment Team.
This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.