Consultation is so important when considering redundancy!

County Print v Page The Respondent was a printing business and the Claimant had worked for them for 23 years as an estimator. And yes the case name is overflowing with irony! There was no dispute that a redundancy situation existed and a letter went out to employees informing them that there would have to be compulsory redundancies and that the staff selected for potential redundancy would be chosen via a point scoring matrix system. Through discussions with the union it was agreed that the scoring matrix headings were attendance, quality, productivity, abilities, skills, experience, disciplinary record and flexibility. The Claimant was not a member of the union. The scoring was carried and the Claimant was informed that it was likely that out of a pool of three he would be selected for redundancy and he was invited to discuss the situation at a meeting. The scoring matrix that the Claimant received indicated the potential range of marking together with the standards and qualities that each level represented. Prior to the meeting the Claimant had not received his actual scores but had prepared a list of questions for the meeting which included a question, "Why was I chosen from a pool of three?" and "Can I see the scoring sheets for the selected criteria?" The minutes of the meeting recorded that the Respondent was given a copy of his personal scoring. The Claimant asked why estimating was up for selection when they were busy and an explanation was given. A further meeting was arranged. The Claimant prepared for that meeting a list of nine questions and statements raising queries in relation to his own marking, in particular, in relation to the category of abilities, skills and experience. He said that he had five O levels, 2 A levels, a Diploma in Printing and 27 years experience and as regards flexibility he said the following, "I am as flexible as the next man. I have always been willing to tackle any task asked of me". Te queries were taken away to be reviewed and at this meeting the Claimant received his matrix scores. As regards the three persons in the pool, namely, the Claimant, a Mr Wardle and a Mr Dyke, the marking was close but the Claimant had received overall the lowest scores. In particular, in relation to abilities, skills and experience he had received a mark of 8 along with Mr Wardle, Mr Dyke receiving 10 and in relation to flexibility the Respondent had received a mark of 6 as compared to 8 received by Mr Wardle and Mr Dyke. A further meeting was arranged at which time the Claimant was given a letter responding to his earlier 9 questions. In those questions the Respondent had raised whether those marking him were the best people qualified to perform an objective assessment and a response to that was received in the letter. In relation to the queries raised in connection with ability, skill and experience and flexibility, the response was in terms that, "The points you made are noted. We believe that the scores given by the assessors are reasonable and appropriate". The Tribunal noted, however, that the Appellant "… did not explain how the scores for the Claimant had been arrived on. They simply said they were reasonable and appropriate". The Claimant was told at this meeting that he would be made redundant and was told of his right of appeal. The Claimant appealed on the grounds that there was no consultation with regards selection criteria, and the selection criteria chosen were not implemented in a fair and non-discriminatory fashion. He also raised the competence and ability of those marking him to "make sound objective assessment of my work". The appeal failed. In relation to the scoring the appeal officer stated, "I have interviewed both Richard and Russell with regards to the scoring of the matrix. I am satisfied that the scoring was factual and correct. All the scores were high as you work in a department of very good employees and unfortunately you scored slightly lower than the others." The tribunal decided that the consultation was inadequate and on that basis the dismissal unfair. They said of the Claimant,"He was told to some extent via the witness statements (about some of the queries he had raised - my words) but obviously this was a considerable time after his dismissal and also to some extent by further matters raised by the respondent's witnesses in the Tribunal hearing. However once the decision to dismiss had been made, the consultation ended and the appeal determined, the receipt of that information was of no use to him. For the employer it was argued that there was no obligation on employers to justify the scoring and suggested that the authorities show it is not generally incumbent on an employer to produce individual assessments of the employees and discuss those with the employees. The Claimant argued that it is a question of fact and degree for the Tribunal to consider whether the consultation was adequate and sufficient and in order to dismiss an employee by reason of redundancy fairly the person consulted must be able to understand the basis upon which the decision is taken and in particular, must be given sufficient information to be able to challenge the scores given to him in the completion of a redundancy exercise. Both counsel reviewed a number of cases in supporting their arguments. The EAT favoured the Claimant's argument. It considered that consultation involves the provision of adequate information on which an employee can respond and argue his case. Had the Claimant been able to challenge the flexibility marking in the way that he sought to do before the Tribunal, his comments could have then been reported back to the markers for their consideration. If they then chose to adhere to their original scores it is difficult to conceive that the Tribunal would seek to interfere with that decision in those circumstances since there had been proper consultation. Authorities such as Eaton v King [1996] IRLR 1999 would then apply to prevent a Tribunal carrying out a microscopic analysis of the scoring system or points awarded. Many reading this will think that there was ample consultation, so be warned. The person facing redundancy must be able to understand the reasons for their selection so that they are able to meaningfully challenge those reasons. The Employer also tried to run a Polkey argument, saying that the Claimant would have been dismissed anyway. They failed. It is for the employer to adduce relevant evidence on which he wishes to rely to show that the employee would or might have ceased to be employed in any event. The Tribunal in this case had found that there was no cogent evidence to enable them to attempt to reconstruct "what might have been". Simply because there were three possible candidates with close marking did not mean that there was a one in three chance that the Respondent would be dismissed, indeed, on the Tribunal's analysis there was a reasonable chance that he would not have been dismissed.