Should an employment tribunal find a redundancy dismissal unfair by examining the scoring in a selection process?
No, says the EAT (HHJ David Richardson presiding) in Nicholls v Rockwell Automation Ltd , unless the employer's motives were in question.
Daniel Barnett’s Employment Law Bulletin reports:
The Claimant's dismissal followed a redundancy scoring exercise. The employment tribunal had found that there was a redundancy situation and a fair process, applied with no ulterior motive, but held that the dismissal was unfair as certain scores were 'clearly lower than they should have been'. The tribunal made a Polkey reduction of one-third.
The EAT applied British Aerospace v Green and substituted a finding that the Claimant's dismissal was fair, holding that the employment tribunal had erred by:
Engaging in a detailed critique of certain items of scoring in determining if it was reasonable for the employer to dismiss the Claimant, and; Substituting its own view for that of the employer. The EAT followed an earlier EAT decision in Mitchells of Lancaster v Tattersall ( bulletin 8th June 2012 ) holding that using criteria that were not capable of objective verification was not fatal to a redundancy selection scheme. Brief facts of Polkey Polkey was an unfair dismissal case - Polkey v A.E. Dayton Services Ltd [1988] ICR 142, HL - in which an employer had failed to consult an employee about impending redundancy. The House of Lords held that the failure to consult was itself enough to make the dismissal an unfair dismissal. The House of Lords rejected the employer's argument (which followed principles established almost ten years earlier by the EAT in British Labour Pump Co Ltd v Byrne [1979] ICR 347, EAT ) that since consultation would not have made any difference to his decision to dismiss the employee the dismissal was fair. Overruling British Labour Pump v Byrne, the House of Lords held that this argument was irrelevant for deciding whether a dismissal is fair or unfair, although it is relevant in assessing compensation. that a dismissal can be unfair purely on procedural grounds that an employee has an absolute right, save in exceptional circumstances, to be consulted before being dismissed notwithstanding that consultation would make no difference to the decision to dismiss him that where a dismissal is unfair purely on procedural grounds a tribunal can reduce the compensation to the claimant, or eliminate it completely, in proportion to the likelihood that the dismissal would have gone ahead even if the correct procedure had been followed. Both parties' appeals on the Polkey reduction were academic. The Polkey case establishes:
COURT OF APPEAL RULING CONFIRMS EMPLOYEE ON LONG-TERM SICKNESS ABSENCE CAN CARRY ANNUAL LEAVE FORWARD INTO THE NEXT HOLIDAY YEAR
27 July 2012
The Court of Appeal this week confirmed that an employee on long-term sick leave was entitled to carry her holiday forward to the next holiday year, even though she had not asked to do so.
CIPP Policy News Journal
12/04/2013, Page 52 of 362
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