Redundancy - another important decision

09/12/2010

By Nick Hobden, Partner and Head of Employment.

In Pinewood Repro Ltd v Page, the Employment Appeal Tribunal (EAT) considered the issue of redundancy selection criteria and the employee's right to be informed and consulted about them.

Facts

Mr Page had worked for Pinewood Repro Ltd (PR) for 23 years, before it was announced in January 2009 that there would be redundancies. PR consulted with the relevant unions and a selection matrix was agreed upon. Mr Page was subsequently informed that he had been provisionally selected for redundancy and he attended various redundancy consultation meetings. He was given copies of his scores and those of others in his department. Mr Page queried his scores, specifically in the abilities, skills and experience section. The response from PR was that "the scores given by the assessors were reasonable and appropriate".

Mr Page appealed his dismissal, but was told that the appeals officer was satisfied that the scoring was factual and correct. Mr Page brought a claim for unfair dismissal.

The Employment Tribunal (ET) held that Mr Page had been unfairly dismissed. It stated that it is necessary for employers to provide an explanation as to why they have scored individuals as they have in the redundancy selection process. PR failed to do this, even when specifically requested. As a consequence, PR left Mr Page with no chance to dispute his dismissal.

PR argued that even in the absence of any unfairness regarding the selection process, Mr Page would have been dismissed in any event. PR therefore suggested that Mr Page's compensation should be reduced as a result. The ET refused to make any reduction in compensation, noting that his marks were so close to those of other employees, that given the chance to dispute his scores, he may well have avoided dismissal. PR appealed the ET's decision.

Decision

The Employment Appeal Tribunal (EAT) upheld the finding of unfair dismissal, stating that PR had failed to explain why Mr Page had scored lower than two other employees. It said that Mr Page needed adequate information to argue his case, which he had not received, noting the requirement for a fair and proper opportunity to understand fully the matters about which he was being consulted and to express its views on those subjects.

The EAT also upheld the ET's decision not to reduce the compensation awarded to Mr Page. PR had presented no evidence to suggest that Mr Page would have been dismissed in any event. PR had argued that since there were only three employees who could have been made redundant, there was at least a one in three chance of him being selected. The EAT dismissed this argument as involving too much speculation.

Comment

What is clear from this case is that redundancy consultation processes must be as transparent as possible; a good part of that process should include discussion of any redundancy selection scoring mechanism and how it has been applied to each employee. This case shows that such consultation can only take place when an explanation of the scores allocated to the employee has been given.