Tribunal Wrong to Subject Employer’s Redundancy Scoring to Detailed Analysis

The EAT has held that a tribunal had been wrong to subject the employer’s redundancy scoring to minute investigation.

In Nicholls v Rockwell Automation Ltd, R needed to make one redundancy from its 11 field service engineers.  It used detailed redundancy selection criteria based on those used in the past which required detailed marking.   The marking process was carried out by one manager and checked by another.  N scored lowest and was selected for redundancy.

The tribunal found the dismissal unfair as the marks given did not accurately reflect N’s capabilities as regards flexibility, administration and product skills.  In addition, the marks allocated to flexibility were not capable of objective assessment and were lower than they should have been.

R appealed, arguing that the tribunal had embarked on the exercise of investigating scores given for individual items when there was no good reason for doing so and had subjected aspects of its scoring to minute investigation.

The EAT upheld R’s appeal and substituted a finding that the dismissal was fair.  A tribunal has to consider whether an employer acted reasonably in dismissing an employee and must start with the reasoning of the employer and ask whether it acted reasonably.  Where a fair system of selection is applied without overt signs of unfairness it is not for the tribunal to embark on a detailed critique of individual items of scoring.

In addition, the law does not require that every aspect of the marking scheme has to be objectively verifiable (independently of the judgment of management) as fair and accurate.  If overall the selection criteria were reasonable, then the fact that some items were not capable of objective verification is not fatal to the scheme. 

This case demonstrates that an employment tribunal is not normally permitted to subject an employer’s redundancy scores to detailed analysis and should not “re-mark” employees.   It must be remembered, however, that a tribunal may investigate further if there is a glaring inconsistency in the application of the selection criteria, which might suggest bad faith or incompetence.  

The case is also helpful as it reaffirms that it is not necessary for every aspect of a marking scheme to be objectively verifiable as fair and accurate – a degree of management assessment and opinion will be acceptable.