Redundancy Consultation

Date online: 03/06/2011

The Employment Appeal Tribunal (EAT) has ruled (Pinewood Repro Ltd. v Page) that for consultation during a redundancy selection process to be fair, an employee should be provided with sufficient information in order to be able to challenge his or her selection for redundancy.

Mr Page had worked as an estimator for Pinewood Repro Ltd., a printing business, for 23 years. The company suffered a loss of business which made redundancies necessary. To this end, a point scoring matrix system was agreed with the trade union.

After a preliminary grading had been carried out, Mr Page was informed that it was most likely that he would be selected for redundancy and he attended a series of meetings with his employer to discuss the situation. Mr Page produced a list of questions, seeking an explanation as to why he had been chosen from a pool of three, and was subsequently given the scoring sheets for the whole department. These contained no justification for the marks given, however. He then raised specific queries regarding the scores he had received for his ability, skill and experience and also his flexibility, to which the response was ‘We believe that the scores given by the assessors are reasonable and appropriate’.

Mr Page appealed against the decision to make him redundant, on the ground that there was no consultation regarding the selection criteria and the process had not been conducted in a fair and non-discriminatory fashion. At the appeal meeting, he again sought an explanation of his scores but was informed by letter that his appeal had failed. His employer was ‘satisfied that the scoring was factual and correct. All the scores were high as you work in a department of very good employees and unfortunately you scored slightly lower than the others’.

Mr Page took his claim to the Employment Tribunal (ET), which found that he had been unfairly dismissed. The ET held that it is necessary for an employer to provide an explanation of why an individual has received the scores he has so that he can take his arguments forward. Pinewood had failed to do this even when asked directly. With regard to Pinewood’s argument that any compensation payment should be reduced as Mr Page would have been dismissed in any event, the ET found no cogent evidence for this. The candidates’ scores were very close and had Mr Page had the opportunity to challenge his score, there was a reasonable chance that the outcome would have been different.

Pinewood appealed against the decision and lost. Whilst warning that it is not the ET’s role in such cases to examine under a microscope the marking system used in the redundancy process, the EAT stated that it is for the ET to decide ‘whether an employee has been given a fair and proper opportunity to understand fully the matters about which he is being consulted and to express his views on those subjects and with the consultor thereafter considering those views properly and genuinely and that may well include being given sufficient information to be able to challenge the scores given to him in the completion of a redundancy exercise’.

As to Pinewood’s contention that Mr Page had a one in three chance of being dismissed in any event, the EAT found this argument ‘completely fallacious’ and ‘not evidence based’.

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