Factual and Procedural Background
This appeal arises from a decision of an Employment Tribunal in Manchester (Employment Judge Feeney), which dismissed a claim for automatic unfair dismissal but found unfair dismissal on redundancy grounds and a failure by the employer to provide written terms and conditions. The employer, a printing business managed by two joint managing directors, had undergone redundancy processes due to loss of business following the loss of a major contractor.
The employee, who had worked for the employer for 23 years as an estimator, was included in a redundancy pool of three employees. A scoring matrix was used to select employees for redundancy based on criteria such as attendance, quality, productivity, skills, and flexibility. The employee received the lowest overall score and was selected for redundancy. The employee challenged the fairness of the scoring and consultation process, including the adequacy of explanations provided for the scores and the opportunity to contest them.
The Employment Tribunal found that the employer failed to provide adequate consultation and explanation of the scoring to the employee, rendering the dismissal procedurally and substantively unfair. The employer appealed the Tribunal’s findings, with leave granted by a High Court judge.
Legal Issues Presented
- Whether the employer was required to provide an explanation of the individual scores given to the employee in a redundancy selection process.
- Whether the consultation process with the employee was adequate and fair in the context of redundancy selection.
- Whether the Tribunal erred in making findings on the factual basis of the scoring and substituting its own view for that of the employer.
- The correct application of the Polkey principle regarding deductions for unfair dismissal where redundancy procedures are flawed but dismissal would have occurred anyway.
Arguments of the Parties
Appellant's Arguments
- The Tribunal erred in imposing a general principle that employers must explain individual scores to employees; no such obligation exists.
- The Tribunal incorrectly engaged in detailed factual findings about the scoring, effectively substituting its own judgment for that of the employer.
- The marking system was reasonable and properly administered, with identifiable criteria agreed with the union, and the employee was informed of outcomes and given opportunities to comment.
- The appeal process was sufficient and the Tribunal failed to properly consider the reasonableness of the appeal decision.
- The Tribunal misapplied the Polkey principle by requiring proof on the balance of probabilities that dismissal would have occurred regardless of procedural flaws, instead of recognizing a possibility suffices for deduction.
Respondent's Arguments
- The case concerns the reasonableness and sufficiency of the consultation and information provided to the employee.
- The Tribunal’s findings are not perverse and fall within the range of reasonable decisions.
- Fair consultation requires providing sufficient information to enable the employee to understand and challenge the selection criteria and scoring.
- The employer failed to provide adequate explanation for the scoring, especially on subjective criteria such as flexibility, and the appeal process did not rectify this deficiency.
- The Tribunal was entitled to evaluate the evidence about the scoring to assess the fairness of the dismissal and the application of the Polkey principle.
- No cogent evidence was provided to show that dismissal would have occurred regardless of procedural flaws, so no Polkey deduction was appropriate.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Post Office v Foley [2000] IRLR 827 |
Employers are not generally obliged to justify individual assessments or discuss detailed scoring with employees. |
Referenced by the Appellant to argue against the Tribunal’s requirement to explain individual scores. |
| Eaton v King [1995] IRLR 75 |
A reasonable selection system properly administered suffices; detailed disclosure of individual scores is not always required. |
Appellant cited this to support the argument that the Tribunal went beyond its role by scrutinizing individual scores. |
| British Aerospace plc v Green [1995] IRLR 433 |
Graded assessment systems should not be subjected to minute analysis to avoid protracted hearings and loss of respect for the system. |
Appellant relied on this to argue against detailed disclosure and examination of scoring. |
| John Brown Engineering v Brown [1997] IRLR 90 |
Fair process requires opportunity to contest selection; withholding scores can render appeal a sham and cause unfairness. |
Both parties referenced this; the Tribunal applied it to find unfairness due to lack of sufficient consultation and disclosure. |
| Mugford v Midland Bank plc [1997] IRLR 208 |
Consultation with unions does not absolve employer from individual consultation; fairness is a question of fact and degree. |
Used to emphasize the need for adequate consultation with the individual employee. |
| Williams v Compair Maxam [1982] ICR 156 |
Standards of industrial relations fairness evolve; tribunals should not lightly find decisions perverse. |
Respondent cited this to support the reasonableness of the Tribunal’s decision. |
| R v British Coal Corporation ex parte Price [1994] IRLR 72 |
Fair consultation requires adequate information, opportunity to respond, and genuine consideration of views. |
Respondent relied on this to define the elements of fair consultation applicable to redundancy. |
| Rowell v Hubbard Group Services Limited [1995] IRLR 195 |
Fair and genuine consultation must be conducted with appropriate consideration of employee views. |
Respondent cited this to reinforce the standards for consultation in redundancy dismissals. |
| Software 2000 Limited v Andrews [2007] IRLR 568 |
Clarifies the application of the Polkey principle regarding deductions for unfair dismissal where dismissal would have occurred anyway. |
Appellant cited this to argue that a Polkey deduction should have been made based on the likelihood of dismissal. |
Court's Reasoning and Analysis
The Court carefully examined the Tribunal’s findings and the parties’ submissions, focusing on the fairness of the consultation process and the adequacy of information provided to the employee regarding the redundancy scoring.
The Court acknowledged established legal principles that fair consultation requires giving the employee sufficient information and opportunity to understand and challenge the reasons for redundancy selection. The Court noted that while employers are not generally required to disclose detailed individual scoring or justify every mark, fairness demands that employees be able to engage meaningfully with the process.
The Tribunal’s conclusion that the employer failed to provide a satisfactory explanation for the employee’s scores, particularly on subjective criteria like flexibility, was upheld. The absence of comments on the scoring sheets and the employer’s failure to respond adequately to the employee’s questions were significant factors.
The Court rejected the employer’s argument that the Tribunal substituted its own view for that of the employer in assessing the scoring, clarifying that the Tribunal’s fact-finding was primarily related to assessing fairness and the Polkey issue, which involves evaluating whether dismissal would have occurred regardless of procedural defects.
Regarding the Polkey principle, the Court agreed with the Tribunal that there was no cogent evidence that the employee would have been dismissed regardless of the consultation flaws. The employer’s argument that a one-in-three chance of dismissal warranted a Polkey deduction was dismissed as speculative and not evidence-based.
The Court emphasized that the Tribunal’s role is to assess whether the employer acted within a range of reasonable responses and that the Tribunal’s decision was neither wrong nor perverse.
Holding and Implications
The appeal is DISMISSED.
The Court upheld the Employment Tribunal’s findings that the dismissal was procedurally and substantively unfair due to inadequate consultation and failure to provide sufficient explanation for redundancy scoring. No Polkey deduction was warranted as the employer failed to demonstrate that dismissal would have occurred regardless of procedural defects.
This decision affirms the principle that employers must engage in fair and genuine consultation with employees facing redundancy, providing adequate information to enable meaningful challenge, especially where subjective criteria affect selection. However, it does not establish a broad principle requiring employers to justify every individual score in detail, but rather focuses on the fairness and reasonableness of the consultation process as a whole.