Angela Watkins, was employed as a secretary. She was placed in a redundancy selection pool of 8 employees, which included Ms Woodhouse, the firm’s receptionist, who had 6 years’ service and a detailed knowledge of the firm’s clients, its procedures and processes, and other business contacts who dealt with the firm.
The selection criteria made known to the employees, were fee-earning ability, client-facing skills, knowledge of the firm’s administrative procedures, availability for suitable work following any re-organisation, and adaptability. Ms Watkins scored 10 out of 25 and was selected for redundancy, but she discovered that Ms Woodhouse had received a lower score, but had been retained. Ms Watkins brought an unfair dismissal claim.
The employer’ argued that it had been made clear to the employees from the outset that their scores against the five criteria were not to be decisive and were only one part of the decision-making process, along with other factors, such as the requirements of the business, the skills of the employees and the resources which would be needed to carry out the firm’s work.
Ms Watkins argued that she had only been informed that the scoring was only one part of the decision-making process when she had received the letter telling her what her scores were and Ms Woodcock, who had been one of the two lowest scorers, had been taken out of that pool so that she would not be made redundant.
The tribunal found the dismissal fair. Although another employer may have chosen to tell the employees of its decision to treat Ms Woodhouse’s role as unique, that did not make the process a sham and the agreed criteria had been applied fairly and objectively.
The EAT upheld Ms Watkin’s appeal. The selection criteria had not been fairly applied because factors other than the agreed criteria and the scores that they had produced were taken into consideration in Ms Woodhouse’s case. The tribunal had not assessed whether it was fair to use factors other than the scores that the employees had achieved in deciding which employees should be made redundant or Ms Watkin’s case that the firm had changed the selection criteria when it realised that Miss Woodhouse would have had to go if those criteria were applied. The case would be remitted to a differently constituted employment tribunal for rehearing.
The key learning point is that selection for redundancy must involve the fair application of objective criteria to everyone in the selection pool. The rules can’t be changed after the scoring if the result is not deemed ‘right’ for the business. It could be the case that a pre-notified overall deciding selection criterion of ‘business requirements’ may be fair, depending on how it is applied. However, such a subjective criterion might not satisfy the requirement for selection criteria to be sufficiently objective so as to eliminate, bias.
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