Unfair selection · The employer is under a duty to choose a fair pool from which to select redundant workers. Fulcrum Pharma (Europe) Ltd v Bonassera and another: The employer placed a human resources manager in a pool of one and made her redundant. It did not consider whether her assistant should have been placed in the pool. The ET found that this was an unfair dismissal. The decision was upheld by the EAT. · The inclusion of a subordinate worker, whose job is to be retained, in the pool, depends on factors including whether the senior employee can accept a junior role, differences in pay and work, the length of employment and qualifications. · Criteria for selection from the pool must be reasonable. Multiple selection criteria may include length of service, productivity, timekeeping and attendance and adaptability. · Chosen criteria must be applied fairly and objectively. Graham v ABF Ltd: G was selected for redundancy on the basis of his low score related to his attitude to work. He had used obscene language and displayed hostility. This had resulted in complaints by colleagues and his manager. Selection criteria included quality of work, efficiency in carrying out work and attitude. The EAT found that the dismissal had been fair. · Grant v BSS Group plc: Where there was a pool of two employees, the failure to carry out similar or identical levels of consultation, after provisionally selecting one person for redundancy, was unfair. · E-Zec Medical Transport Service Ltd v Gregory: G was employed by E, a private ambulance company, as an ambulance driver and administrator. She reduced her work hours to look after her disabled daughter. The company started redundancy proceedings. Selection criteria included service, absence, sickness, disciplinary record, performance, commitment, attitude, skill base and team working. This was not explained to workers and the union was not consulted. G was selected for redundancy and went to a meeting, described as a consultation meeting, where she was given a prepared notice of redundancy. G complained of sex discrimination, disability discrimination and unfair dismissal. The ET upheld the unfair dismissal complaint on the basis that E had failed to consult and that the criteria were based on personal judgment. The EAT upheld this decision. The redundancy process fell outside the range of reasonable responses. · The ET will not order disclosure of all assessments of workers in the redundancy pool unless these are relevant to unfairness. British Aerospace v Green and others: BA decided to make 530 workers redundant. All employees were assessed and scored. G and others complained of unfair dismissal and applied for disclosure of all employees’ scores. The Court of Appeal ruled that this would impose an excessive burden on BA. The question was whether the company had applied a fair procedure. If a selection process is to function effectively, its workings should not be officiously scrutinized or subjected to a minute analysis. · FDR Ltd v Holloway: the IT ruled that a worker claiming unfair selection for redundancy was entitled to disclosure of documents and particulars related to seven others in the selection pool who were not made redundant. This decision was upheld by the EAT which stated that disclosure was relevant and necessary for the proper determination of the claim that selection criteria were unfairly applied. · Large or medium-sized employers will normally be expected to use a methodical selection approach which awards potentially redundant workers with points and dismissing those who score least. Small employers must use a fair selection method. · Mental Health Care (UK) Ltd v Biluan and Makati: M carried out a redundancy exercise covering a pool of 48 workers, of whom 19 were to be made redundant. Workers were assessed with reference to criteria of competency, disciplinary record and sickness absence record. The competency assessment was based on a series of exercises designed for use in a recruitment process and did not take account of past performance. The results of the assessments were accepted by M as being surprising, but they were not reviewed. The claimants’ complaint of unfair dismissal was upheld by the ET and the EAT. The recruitment-style process was inappropriate. Evidence of decision Agarwal v Cardiff University UKEAT/0115/19/RN A, a clinical senior lecturer employed by C, was dismissed for redundancy. She brought a number of claims in the ET, including unfair dismissal, all of which were dismissed. She appealed to the EAT, arguing that the ET had failed to identify the decision maker in relation to the redundancy and that the mental processes of the decision maker could not be subjectively examined. The appeal was dismissed. The decision makers had been adequately identified without the need to identify each member of the redundancy committee. The ET’s choice of witnesses and evidence had been a sensible and permissible case management decision. The ET was entitled to reach the conclusion that A’s dismissal was genuinely by reason of redundancy. Case Examples: Gwynedd Council v Barratt UKEAT/0206/18 PE teachers at a number of schools were being reorganised into one large school. The large school was to be on their original site. The number of PE teachers was to be reduced. The local authority announced that all staff would be dismissed. The new staffing was to be decided by an application process and unsuccessful applicants would be made redundant. The claimants were not given an opportunity to make representations in respect of the decision to dismiss or to lodge appeals. The redundant workers complained of unfair redundancy dismissal. Their claims succeeded in the ET which found that the claimants had not been dismissed because a redundancy situation had arisen but because of the method that the employers chose to deal with the redundancy situation. The lack of appeal or review of the process of requiring the claimants to apply for their own jobs was substantively and procedurally unfair. The employers appealed to the EAT, partly on the basis that the normal fairness requirements in Williams v Compare Maxim Ltd (1982) did not apply because this was a reorganisation and not a redundancy. The appeal was dismissed. There had been no error in the ET’s approach to fairness. Even where the principle in Morgan v Welsh Rugby Union (2011) can be relied on by an employer, this does not rule out at least some of the Williams guidelines. Note: Morgan v Welsh Rugby Union. Where an employer reorganises so that old roles disappear and are replaced by new jobs, this may legitimately rely on something like an interview process to assess employees’ ability to perform in the new roles. The ET will look to see whether a fair process was followed and whether there is any indication of bias. It will consider whether all aspects of the dismissal were within the band of reasonable responses. Davies v DL Insurance Services Ltd UKEAT/0148/19/RN D was made redundant by DL. He applied unsuccessfully for a number of alternative roles and brought claims in the ET for unfair dismissal for redundancy, reinstatement or re-engagement, and compensation. The ET found that D had been unfairly dismissed for redundancy. It awarded compensation, but it did not make a re-engagement order on the basis that it had not been given enough information to identify a suitable alternative role for D. D appealed to the EAT on the grounds that the ET had erred in giving inadequate reasons for its decision on re-engagement and failing to apply the correct legal test. The appeal was allowed and the matter remitted to the same ET. The ET had failed to ask itself the correct question in relation to re-engagement, and had failed to apply the correct approach by considering that, to avoid making an order, it was enough for the employer to say that D was not the best candidate. Doolan v Interserve Facilities Management Ltd (2013) Eq Opp Rev243:22, London South ET D, an autistic man, was employed by IFM. He was warned of possible redundancy, but he did not understand the seriousness of this because of his disability. The selection pool for redundancy included a rage of employees. D scored lowest and was subsequently made redundant. He complained of unfair dismissal and disability discrimination. The disability discrimination claim succeeded. The redundancy selection criteria applied by IFM had put D at a substantial disadvantage. Adjustments should have been made to remove that disadvantage. Connolly v London Probation Trust (2013) Eq Opp Rev 239:29, London Central ET C was employed by LPT for 26 years. In 2003 she was diagnosed with cerebella ataxia. This condition affected her mobility and eyesight and she became a wheelchair user. LPT made a number of adjustments to enable her to carry out her role. In August 2011 LPT began redundancy consultation. “Standard of work performance” was one of the criteria used in redundancy selection. C’s standard of work received a score of zero on the basis that she had not met requirements. C complained of disability discrimination, claiming that there had been a failure to make reasonable adjustments in assessing her standard of performance. Decision of the ET: There had been a provision, criterion or practice (PCP) of reliance on the scoring of standard of performance. C had suffered a substantial disadvantage of being scored zero, which might not have been the case if she had been given the required training. The appraisal put her at a disadvantage compared to someone who did not have the same mobility issues. It would have been a reasonable adjustment to have ensured that training was provided to C. Remedy: recommendation that LBT’s policies did not discriminate and that reasonable adjustments were made where a work performance assessment was to be made. Darr v LRC Products (1993) D complained of unfair selection for redundancy. The Industrial Tribunal upheld the complaint and ordered re-engagement. The employer refused to re-engage and D sought additional compensation. The IT refused on the ground that D had already been paid £11,000 redundancy payments – more than the tribunal would have awarded. The IT did not state reasons or calculations. On appeal to the EAT, held: The IT had erred in failing to give adequate reasons for its finding. Boorman v Allmakes Ltd (1995) A basic award for unfair dismissal cannot be reduced by the amount of a redundancy payment where an IT finds that the dismissal was not for redundancy. But such payment may be offset against a compensatory award. Bristol Channel Ship Repairers Ltd v O’Keefe [1977] IRLR 13, EAT: where employee claims unfair dismissal and it emerges that the true reason for the dismissal was redundancy, then burden of proof is upon employer to justify method of selection for redundancy. The employer must produce evidence of selection method and factors taken into account. Vickers Ltd v Smith [1977] IRLR 11, EAT: management has power to select for redundancy. The tribunal can only interfere where the choice is so wrong that the decision would not have been reached by any reasonable or sensible management. Watling & Co Ltd v Richardson [1978] IRLR 255, EAT: tribunal must not substitute own views for that of employer, where latter are reasonable. Gargrave v Hotel & Catering Industry Training Board [1974] IRLR 85, EAT: when employee claims dismissal for redundancy unfair because other employees were not made redundant, it must be shown that the others are in the same unit of selection. The scope of this unit of selection depends upon the following factors: department where redundancy arose; job description of affected employees; degrees of skill within description.