Pinewood Repro Ltd t/a County Print v Page
When considering someone for redundancy, employers should consult with the employee. In Pinewood Repro Ltd t/a County Print v Page, the Employment Appeal Tribunal (EAT) said that consultation must involve providing adequate information which the employee can use to respond to and argue their case against dismissal, as well as challenge any points allotted under a scoring system.
Basic facts
Following the loss of a major contract, the company sent out a letter to employees on 9 February 2009 telling them there would be compulsory redundancies.
It explained that staff would be chosen using a point scoring matrix system which included attendance, quality, productivity, abilities, skills, experience, disciplinary record and flexibility.
Mr Page, who was in a pool of three, was informed that it was most likely that he would be selected and invited to attend a meeting on 20 February at which he was given a copy of his personal scores. This showed he had been given slightly lower scores than the other two employees for ability, skill and experience and flexibility.
He was not given an explanation as to how the assessors had arrived at those scores - he was just told that they were “reasonable and appropriate”. Although each sheet contained a column for “justification/comment/example of performance”, none had been filled in.
Mr Page claimed unfair dismissal as a result of unfair selection for redundancy.
Tribunal decision
And the tribunal agreed, saying that the company had failed to provide an explanation as to how it had arrived at the individual scores for the three employees.
It was clear how it had arrived at some “mechanical” markers such as attendance but in terms of other, more subjective, areas such as flexibility, it had been impossible for Mr Page to challenge the scores because the company had refused to explain how it had reached them.
The tribunal said that as some of the matters relied on by the assessors to mark down Mr Page were “patently challengeable”, they should have been aired in the consultation process.
It therefore concluded that the dismissal was procedurally and substantively unfair.
EAT decision
And the EAT agreed, saying that "fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted and to express his views on those subjects and the consultor thereafter considering those views properly and genuinely."
It added that although tribunals should not carry out a “microscopic analysis” of scoring systems, they should decide whether the employer had provided enough information for the employee to challenge their scores, particularly in relation to subjective criteria such as flexibility.
As for the employer’s argument that Mr Page’s compensation should be reduced because he would have been dismissed anyway (known as a Polkey deduction), the EAT said that employers must rely on “cogent evidence” which is evidence-based.
In this case it was “completely fallacious” for the employer to rely on the argument that as he was in a pool of three, there was a one in three chance that he would be dismissed and therefore his compensation should be reduced by at least one third.