Labour & European Law Review Weekly Issue 225 07 July 2011
When scoring employees for potential redundancies, employers should adopt fair selection criteria and follow a fair procedure. In Dabson v David Cover & Sons Ltd, the Employment Appeal Tribunal (EAT) confirmed that when considering the fairness of someone’s selection for redundancy, Tribunals cannot rescore claimants unless it can identify an obvious mistake or a lapse of good faith on the part of the employer.
In February 2009, the company announced that 80 employees were at risk of redundancy. As there was no recognised trade union, it asked for employee representatives to come forward. It appointed the Depot Manager, Mr Taylor (with whom Mr Dabson had had a bit of a run-in), as he was the only volunteer to come forward.
The company consulted with Mr Taylor, as required under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 on the redundancies, including a proposal to scrap one of the three posts held by Mr Taylor, Mr Dabson, the Transport Manager and Ms Watts the Transport Administrator.
Under the scoring exercise, Mr Taylor scored the highest marks for the revised post of Transport Manager. He then marked Mr Dabson (who had also applied for the post of manager) and Ms Watts for the revised post of Transport Administrator, giving Mr Dabson the lowest score. Mr Green, a director of the company, increased Mr Dabson’s scores when he checked them, but as they were still the lowest, he was selected for redundancy.
Mr Dabson did not make a claim at first, but three months later, he saw an advert for his old job as Transport Manager and claimed unfair dismissal, believing he had been forced out by Mr Taylor. He pointed to the fact that he been given different scores for the same skills in the two scoring exercises for the manager and admin posts.
He also claimed that the company had not complied with section188 as Mr Taylor had not been elected and it had not consulted individually with him in accordance with section 188(7). He argued that the two consultation meetings meetings with him only took place after it had already decided to dismiss him.
The Tribunal found the dismissal was fair. It said that the company genuinely believed at the time that the re-organisation was the best way to achieve efficiencies. It was also satisfied that the managers involved genuinely believed that Mr Dabson’s scores were “fair, reasonable and appropriate” and that it was not for the Tribunal to “rescore” him.
As this was not a claim for a protective award alleging a breach of the collective obligation to consult, the Tribunal said it did not have to decide whether the company should have consulted individually with Mr Dabson. With regard to the unfair dismissal claim, it concluded that it consulted with him “in relation to those matters which it was obliged to consult with him about” in the two individual consultation meetings in March.
The dismissal was not, therefore, unfair.
The EAT agreed with the Tribunal, saying it had asked the right question, which was whether the company had acted fairly or not. It also agreed that Tribunals should “not go beyond seeing whether the selection, including the marking, was fair and should only investigate marking where there was an absence of good faith or obvious error”.
As for the differences in the marks, it said the Tribunal “was perfectly entitled to conclude on the facts that, as the jobs were different, a different skill mix was required and there was, therefore, no inconsistency”.
The EAT also rejected the suggestion that there had been a lack of consultation. It said the Tribunal had been entitled to conclude that the earlier consultation with Mr Taylor had been effective, not least because Mr Dabson accepted that there was a redundancy situation and did not object to the criteria. In addition, it said that the two meetings held with Mr Dabson did amount to consultation and not just notification of dismissal.
The EAT also commented that even if there had been a breach of section 188 that would not, in and of itself, have rendered the dismissal unfair.
Despite the optimism generated by the decision in Pinewood Repro Ltd v Page (see weekly LELR 196) , this case highlights the unwillingness of EATs to interfere in the decision of a Tribunal in redundancy dismissals which has found that the approach adopted by the employer was within the band of reasonable responses, “It is inappropriate” said the EAT, “to use a fine toothcomb or to subject the reasons of the Employment Tribunal to unrealistically-detailed scrutiny”.