On your marks

Davies v Farnborough College of Technology

The statutory dismissal and disciplinary procedures state that employers have to provide employees with certain information before they dismiss them. In Davies v Farnborough College of Technology, the Employment Appeal Tribunal (EAT) said that although employers do not have to disclose individual marks when making someone redundancy, it would have been sensible to do so in this particular case.

Basic facts

Mr Davies was one of three lecturers in the marketing department at Farnborough College. He had worked there for nearly 20 years and was a few years off retirement when the college announced that redundancies would have to be made, as a result of a decline in demand for courses.

The college sent Mr Davies a step 1 letter (see below) dated 3 July, setting out the selection criteria for redundancy and inviting him to a meeting which took place on 11 July. The college had, by this stage, started the assessment process but had not yet made up its mind about who would be made redundant.

A further meeting took place on 19 July at which Mr Davies was told that he had the lowest score (although he was not shown the individual scores) and was, therefore, going to be made redundant. His appeal hearing, at which there was a “very full discussion” of the criteria, was unsuccessful.

Mr Davies claimed automatically unfair dismissal as he had not been told prior to the 19 July meeting that he was to be dismissed, contrary to step 2 of the statutory dismissal procedure.

Relevant law

Schedule 2, part 1, of the Employment Act 2002 Act says:

• step 1: employers must send their employee a letter setting out the alleged conduct that might result in dismissal or disciplinary action 
• step 2: employers must then have a meeting, once they have informed the employee what it’s all about and the employee has had a reasonable opportunity to think about how to respond

Tribunal decision

The tribunal decided that, although Mr Davies was upset at having scored less than his two colleagues, there was no bias on the part of the college.

It concluded that “there was sufficient warning, sufficient consultation, a use of objective selection criteria, a fair application of the selection criteria and sufficient consideration of alternatives”. Although it was “unfortunate” that the college did not give Mr Davies his marks to begin with, it considered that “defect was cured at the appeal hearing”, although he was not given his actual marks until the tribunal hearing.

EAT decision

Relying on the case of Alexander and another v Brigden Enterprises Ltd (2006, ICR 1277), the EAT said that although employers do not always have to disclose an employee’s marks (nor those with whom they are competing), it would have been “sensible and appropriate” in this case.

It went on to say that the college did not explain to Mr Davies how it had reached the conclusion that he should be made redundant either at or prior to the meeting of 19 July. Nor did it give him the chance to challenge the basis on which it had made that decision.

It concluded, therefore that “There was therefore, in our judgment, a breach of the procedure as so interpreted. That breach did not involve necessarily the need to disclose the marks, but it certainly involved the need to disclose very much more than was disclosed, and/or to have disclosed it earlier, and in time for the meeting, and certainly to give the opportunity for discussion which simply did not take place.”

His dismissal had therefore been automatically unfair.