Failed consultation

E-Zec Medical Transport Service Ltd v Gregory

The law requires employers to consult with trade unions and individual employees in the event of making employees redundant. In E-Zec Medical Transport Service Ltd v Gregory, the Employment Appeal Tribunal (EAT) said that the employee’s dismissal was unfair because the company had failed to consult properly and could not prove that the criteria for selection had been applied objectively.

Basic facts

Ms Gregory worked as an administrator and ambulance driver for E-Zec, a private ambulance operator. In October 2006 she reduced her hours to look after her disabled daughter.

Due to a downturn in work, the company started redundancy proceedings the following month. The selection criteria were drawn up by two managers. The HR manager checked the non-work selection criteria including service, absence, sickness and discipline record.

A regional manager marked the criteria relating to performance, commitment, attitude, skill base and team working, but relied entirely on his subjective judgement to do so. The trade union was not consulted on the selection criteria, nor was the process explained to staff.

As Ms Gregory had the second lowest score, she was selected for redundancy and invited to a meeting at which she was shown her scores, but not the whole scoring matrix. She was given a letter which said she might be made redundant and then invited to a so-called “consultation” meeting in January 2007 where she was given a pre-prepared letter telling her she had been dismissed due to redundancy.

Ms Gregory appealed against her dismissal, arguing that she had been discriminated against on grounds of sex and disability. She also felt she had been picked out because of her part time status. Her internal appeal was unsuccessful.

Tribunal decision

The tribunal dismissed her claims for sex and disability discrimination but agreed that she had been unfairly dismissed. It said that the company had failed to consult with the trade union when the criteria were still at a formative stage, and that Ms Gregory had not been given adequate time to consider and respond to the proposals.

It also said that the criteria were not objective in that too much of the marking was left to the managers’ personal judgement and “a substantial proportion of the criteria were not capable of specific measurement by reference to records of attendance, efficiency, etc”.

EAT decision

The EAT agreed with the tribunal. It criticized the company managers for their failure to consult the union and staff in relation to the selection criteria and said that the scoring was unfair because of the subjective way in which one of the managers had carried it out.

The appeal process had not remedied any of these problems as the manager hearing the appeal had, effectively, just rubber-stamped the decisions that had already been made.

The EAT also agreed that the consultation process was inadequate as Ms Gregory was only told how she would be scored. There was no discussion with her about how the selection criteria had come about, nor how the marking process would work.

It therefore decided that the process was unfair and “fell outside the band of reasonable decisions for the key criteria to be left to one individual who was not able to support his marking by reference to any company documents such as performance appraisals, who had not spoken to any other manager concerning those marks and who had made no notes or given any indication as to how he had made this individual choice”.

It concluded that the tribunal had been careful to make clear “that their task was not to subject the marking system to microscopic analysis or to check that the system had been properly operated but they did have to satisfy themselves that a fair system was in operation. In our view [they] were entitled to come to the conclusions that this was not a fair system and that the appeal process did not cure it”.