Labour & European Law Review Weekly Issue 255 09 February 2012
Employees at risk of redundancy have the right to know the criteria against which they will be scored and to see their scores. In Camelot Group plc v Hogg, the Employment Appeal Tribunal (EAT) said that did not mean that if an employee challenged the redundancy criteria, they had the right to see whatever documentation they asked for before the decision was taken to dismiss them.
As part of a cost cutting exercise, Ms Hogg was made redundant in June 2009 following an extensive consultation exercise by the company. At a meeting on 8 May 2009, she was shown her scores, broken down under the relevant headings. She was also given the opportunity to comment on them.
She met again with one of the retail business managers on 22 May when she said she did not accept the scores, saying they did not fairly reflect her abilities, although she did not specify which ones.
She also asked to see a copy of the notes taken at her interview. She received them in advance of a meeting on 5 June, but a few days after the decision had been taken to dismiss her. She was told at that meeting that she would lose her job on 12 June.
Ms Hogg unsuccessfully appealed the decision to dismiss her on the ground of “inconsistencies within the selection process which led to redundancy”, but still did not challenge the scores themselves or the way in which the criteria had been applied to her.
The Tribunal held that her dismissal was procedurally unfair.
Relying on the case of John Brown Engineering Ltd v Brown and ors, it said that as Ms Hogg had given Camelot “reasonable notice” that she wanted to challenge the way the assessment criteria had been applied to her, she should have been given a reasonable opportunity do so.
It was clear that, by requesting details of the basis of her scores, she “did not acquiesce in the manner in which the criteria had been applied to her, and reserved her right to challenge it”. The company, by taking the decision to dismiss her before the final consultation meeting, had effectively deprived her of the opportunity to do so.
The EAT said that the Tribunal had misunderstood the decision in John Brown Engineering Ltd. It did not support the proposition that if an employee challenges the redundancy criteria, then they must be allowed to see their interview notes (or whatever documentation they ask for) before the decision is taken to dismiss them.
As Ms Hogg knew her overall score and its individual components, the Tribunal was wrong to draw the inference that, by asking to see the interview notes, she had somehow communicated that she reserved the right to challenge her scores. Instead the Tribunal should have asked whether, overall, there was a fair redundancy process.
It was clear that Ms Hogg had had ample opportunity to query or complain about her scores and interview notes in a process which, overall, was “thorough and careful”.
And although it was good practice for employers to provide any information that was requested, that was a long way from saying that they had to. In the overall scheme of things, the failure to provide the notes was a minor omission at the initial stage of what was, otherwise, found to have been a fair redundancy procedure.
It added that a flaw at one stage of a dismissal process for any of the potentially fair reasons, including redundancy, does not of itself mean that the dismissal is unfair and warned that Tribunals “should guard against minute scrutiny of individual parts of the process lest it diverts them from the task set by the statute” when deciding whether a dismissal is fair.