Know the score

Where an employer wishes to dismiss fairly for redundancy, it must also act reasonably. An employer will normally not act reasonably unless it warns and consults employees about the proposed redundancy, adopts a fair basis on which to select for redundancy and considers suitable alternative employment. The employment appeal tribunal (EAT) has recently considered the extent to which the second of these requirements entails an employer explaining to an employee the reasons for its scoring in a selection matrix. In Pinewood Repro t/a County Print v Mr Page, the facts were as follows. Mr Page worked as an estimator for printing business Pinewood Repro for 23 years. In January 2009, Pinewood announced that there were to be redundancy dismissals. The redundancy selection matrix headings were agreed with the union - these were attendance, quality, productivity, abilities, skills, experience, disciplinary record and flexibility. There was a pool of three estimators and all their marks were close, following the scoring. Page was notified that he was provisionally selected for redundancy and attended redundancy consultation meetings. He was given a copy of the scoring matrix, which indicated the potential range of marking, together with the standards and qualities that each level represented. He was also shown his personal scores and given a copy of the matrix scores for the department. As part of the consultation process, Page queried his scores relating to the three categories of abilities, skills and experience, and sought further information in relation to the subjective area of flexibility. Pinewood responded by stating that it believed that "the scores given by the assessors [were] reasonable and appropriate". It did not, however, explain how his scores had been arrived at. In response to his unsuccessful appeal against dismissal, Page was told that the appeals officer was "satisfied that the scoring was factual and correct". Page complained to an employment tribunal of unfair dismissal. The tribunal concluded that Page had indeed been unfairly dismissed. In its view, it is necessary for an employer undertaking a redundancy exercise to provide an explanation as to why an individual has received his or her allocated scores. Pinewood had failed to do this when asked and this meant it was not possible for Page to dispute properly his selection. Pinewood appealed to the EAT. The EAT upheld the tribunal's finding that Page's dismissal was unfair. It held that the tribunal had been entitled to reach that conclusion, given Pinewood's failure to explain to Page why he had been scored lower than two other people and to provide further information about his own marks. The EAT reviewed the relevant case law in this area and stated that employees should have sufficient information to enable them to understand their scores and an opportunity to challenge them. Pinewood also appealed, unsuccessfully, against the tribunal's decision not to reduce Page's compensation to reflect his chances of being dismissed in any event. The EAT ruled that employers seeking to run such an argument must rely on cogent evidence. Pinewood had presented no evidence to the tribunal demonstrating that Page would have been dismissed in any event. On the particular facts, it was "completely fallacious" to say that just because he was in a pool of three, there was a one in three chance of dismissal. For those employers who are alarmed at the EAT's conclusions in this case, it is worth noting that the EAT did indicate in its judgment that the general principle set out at employment tribunal level - ie, that an employer has to provide an explanation of why an individual has received particular scores - is too broad. The EAT commented that a further explanation of scores on objective criteria (such as attendance, time-keeping, conduct and productivity) may not be necessary. It concluded that, ultimately, it is up to an employment tribunal to decide in each particular case whether an employee has been given a fair and proper opportunity to understand fully matters about which he or she is being consulted. It is very important that employers handle redundancy dismissals fairly. If a redundancy dismissal is unfair, an employee will normally be entitled to payment for any notice period which they have not been given or worked, compensation for unfair dismissal in the form of a basic award (although this will be cancelled out by the employee's receipt of their statutory redundancy payment) and a compensatory award of up to £68,400, which is the new financial cap from February 2011. Occasionally, a tribunal will make an order for an employee's reinstatement or re-engagement, rather than ordering monetary compensation. Vanessa Webster is a principal legal adviser at manufacturers' organisation EEF: www.eef.org.uk