Lloyd v Taylor Woodrow [1999] IRLR 782
In this case it was considered whether procedural unfairness in a redundancy situation committed at the time of dismissal but rectified at the appeal stage amounted to unfair dismissal.
Mr Lloyd was one of two quantity surveyors employed by Taylor Woodrow. The management's response to a reduction in workload was to reduce this number to one, leaving the other redundant. Redundancy is one of the five potentially fair reasons for dismissal and the Tribunal had to consider whether the selection for redundancy was fair in all the circumstances. Consultation took place prior to the dismissal, and effort made to find Mr Lloyd alternative employment within the Group. Mr Lloyd was chosen as the one to go but it was not until some eight weeks after the decision to dismiss him was taken, during the appeal process, that he was informed of the selection criteria.
The failure to inform an employee of the selection criteria used in a redundancy exercise can be fatal to an employer's assertion that a dismissal is fair. But how is this position affected where the failure is remedied in the internal appeal process?
Mr Lloyd's claim was unsuccessful in the Employment Tribunal and he appealed to the EAT. The EAT held that the Employment Tribunal was correct and that the general principle that a procedural defect could be cured at a later stage stood, provided any appeal represents a re-hearing and not merely a review of the decision. This decision is in line with previous decisions on capability and conduct (other potentially fair reasons for dismissal under s.98 ERA 1996), and it was held in this case that there should be no distinction for redundancy cases, although there were previously no reported cases. The spotlight may now shift to the appeal process itself in future cases. Only where the appeal represents a genuine rehearing, and not a sham exercise, should employers be able to benefit from this decision.
The crucial judgement for advisers remains - whether to use glaring errors as grounds of appeal in the internal stages in the hopes of reversing the decision to dismiss, or saving the points for a Tribunal. It is a question of judgement in each case, but it will usually be better to raise the point internally rather than wait for the Tribunal.