The case Mental Health Care (UK) Ltd v Biluan & Anor involved a redundancy exercise where staff were selected using selection criteria comprising disciplinary and absence records and a competency assessment. In the vast majority of cases it was the competency score which was decisive. The manager said that he was surprised by the competency results and that several employees who had been selected for redundancy were good employees. The original tribunal held that dismissals were unfair because capability had been assessed mainly on the competency assessments and had taken no account of prior performance. The employer appealed arguing that the tribunal had substituted its own view. The EAT acknowledged that the employer took care over the process but chose an 'elaborate and HR driven method' depriving it of the benefit of input from managers and others who knew the staff in question. Importantly for employers they commented that whilst it is desirable to seek to avoid subjectivity and bias, this goal can come at "too high a price" adding that it is misplaced to fear that a tribunal will find a procedure unfair only because there is an "element of 'subjectivity" involved. The appeal was dismissed.
INTERIM RELIEF CLAIMS
1 April 2013
The EAT has been considering the correct approach to the test for interim relief.
Should a claim for interim relief be decided on the balance of probabilities as to whether a Claimant will ultimately succeed in showing that dismissal was on a prohibited ground? As reported in Daniel Barnett’s Employment Law Bulletin . No, says the EAT in London City Airport v Chacko , dismissing the employer's appeal against a claim for interim relief for a Claimant alleging dismissal for trade union activities. The employment judge had correctly applied the statutory test, and there was no error of law in the tribunal judgment. The EAT considered controversy over the correct approach to the test for interim relief, and the meaning of it being 'likely' that the tribunal will ultimately find that a dismissal was for a prohibited ground, noting that it must "be established that the employee can demonstrate a pretty good chance of success" at a final hearing, an approach that had been consistent for over three decades. The EAT noted that interim relief applications are considered on a summary basis, assessing the untested documentary evidence of the parties, and that "the employment judge must do the best he can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases". The requirement for a swift hearing "must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim".
COST PROTECTION FOR APPEALS TO COURT OF APPEAL
3 April 2013
In a recent hearing Lord Justice Jackson rejected a request, made by Manchester College who were appealing against a previous decision, made in advance of a Court of Appeal hearing, for the usual cost consequences to apply in the event that they were successful.
This case arose following restructuring and efficiency measures within the college which resulted in two employees refusing to accept the reduction to their salaries. When faced with
CIPP Policy News Journal
12/04/2013, Page 81 of 362
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