Unfairly selected for redundancy? You may be able to sue

An employee may have recently received a good appraisal, and may have been with their company for many years without any performance issues - and yet they are still selected.

A recent Employment Appeal Tribunal ruling highlights the dangers for employers where a scoring process for redundancy selection is adopted (as it should be).

The case was Alstom Traction Ltd v Stephen Birkenhead and others (2002). Birkenhead and the other complainants were among 100 members of staff made redundant by the company as a result of trading difficulties.

Before the redundancy, there had been collective consultation with the unions, but no agreement could be reached on the selection criteria to be applied.

The employer decided selection would be based on: attendance, time-keeping, length of service, accuracy of work, co-operation, job flexibility and versatility.

The assessments of Birkenhead and the other complainants were carried out by their line managers, whose assessment was subjected to a two-stage process of validation by the firm. The staff played no part in this process.

After the assessments were completed, Birkenhead and the other complainants received letters saying they were "at risk" of redundancy. They then attended a "consultation" meeting at which they were given their total assessment scores, without a breakdown of the scores, or the opportunity to challenge them.

There was then a second "consultation" meeting, where they were told their redundancies would be confirmed. Following an unsuccessful internal appeal against their dismissal, Birkenhead and the other complainants brought proceedings for unfair dismissal.

The Employment Tribunal upheld their complaints. It found the first consultation was the only opportunity the complainants might have had to challenge their scores, but, on that occasion, they were not given the chance to question the assessors about the scoring system or the marks awarded.

Accordingly, the initial selection was flawed.

The tribunal was also not satisfied that "an independent process was set up under the appeal system to allow the employee a fair hearing on appeal", because although all the assessment scores had by then been disclosed, the complainants' representative had not been given an opportunity to question the assessors or to assess the material on which their decisions had been made.

The complainants, therefore, never knew the "full case against them".

Appeal dismissed

On appeal, the company argued that the Employment Tribunal had got bogged down in case law and had lost sight of the fundamental question posed by the statutory provisions - namely, whether the dismissal was fair in accordance with the rules set out in Section 98(4) of the Employment Rights Act 1996.

The Employment Appeal Tribunal dismissed the appeal and said the tribunal had not attached too much importance to the 'guideline' legal authorities which it had referred to in its decision on the issues of consultation and a fair appeal process.

The tribunal, in reaching its conclusions, had applied the statutory test of fairness posed by Section 98(4) of the Employment Rights Act 1996, and was entitled to refer to the case law in applying the statutory test.

The key points that arise from this are:

- In redundancy selection cases, employees should be consulted on their redundancy assessment before they are selected for redundancy and should be provided with the evidence on which those assessments are based.

- There should normally be a direct meeting between the person who carried out the assessment and the person assessed in much the same way as there would be in any appraisal process

- Where this does not take place as part of the original selection process, it should take place at the appeal hearing.

- In the absence of the above, an employee may well be successful in bringing a claim for unfair dismissal.

By Philip Landau, solicitor and partner of Landau Zeffertt Weir, www.lawserve.co.uk; 020 7357 9494: pl@lawserve.co.uk.

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