Fair redundancy scoring

22nd May 2011 It is standard practice for employers when selecting for redundancy to use a point scoring system. In this way the employees found to be in the pool for selection (when they carry out the same or broadly the same work) can be properly compared and assessed. 

The case law, and custom and practice indicate that fair criteria will include objective factors (such as disciplinary record, and length of service). However, employers obviously also like to include comparisons of work performance too, which should be evidenced through documented process such as work appraisals.

In practice employees often challenge their scoring, particularly when the difference between keeping their job and losing it may be measured in just a few points in the scoring process. Even after an internal appeal, an unhappy employee may believe that the scoring he or she received was too low, or was  unfair for some other reason.

A recent decision of the Employment Appeals Tribunal (EAT) re-affirms the general principle that the Employment Tribunal should not scrutinise the marking in redundancy selections in the absence of obvious mistake  or absence of good faith. Many former employees, in bringing a claim of unfair selection for redundancy to the Employment Tribunal expect that the Tribunal will listen to the evidence for the purpose of rescoring the redundancy selection assessment. In the recent case of Dabson v David Cover & Sons the EAT has re-affirmed the established principle that the Employment Tribunal should not investigate the scoring given by the employer unless there is an obvious mistake or bad faith in the scoring. 

However, this does not mean that employers can be completely casual in their approach to a redundancy selection scoring exercise. In the case of Pinewood Repro Ltd v Page the EAT indicated that a fair consultation process involves giving the employee an explanation for why he or she has been marked down in the scoring, in particular on any subjective criteria - such as "flexibility". In addition the case of E-Zec Medical Transport Services v Gregory (EAT) (see our news article in December 2008) shows that it will be unfair if an employer uses subjective criteria without any cross-referencing or other documentary support for the scoring. However, once the employer can point to some evidence to support its scoring, and ensures that the employee has a chance to appeal against it, it is unlikely that an Employment Tribunal will be drawn into further analysis of the scoring, unless there is some obvious mistake or exceptional cicumstance (such as bias) in deciding if the resulting dismissal was fair or not. The lesson for employers is therefore to ensure that a fair range of criteria are used that are relevat to the work in question, and that the employer has some other documentary evidence to support the scores given (such as appraisal records, sickness absence records, etc)
 
The lesson of this case for employees is to ensure that any challenge to the scoring is raised in the internal appeal process, and is clearly explained. In addition the employee should, where relevant, raise any allegation of bias or factor that should be taken into special account when scoring.  

At Hallett Employment Law Services we can help give you practical guidance through a fair redundancy selection and scoring process. If you need any advice or help in respect of the issues raised in this article please do not hesitate to contact us.