In Nicholls v Rockwell Automation Ltd  the EAT had to consider whether an employment tribunal was entitled to find a redundancy dismissal unfair by examining the employer’s scores for the selection pool.

The facts
Rockwell decided to make one of its 11 field service engineers redundant to reduce costs. It informed the staff affected, set out detailed redundancy criteria based on: current disciplinary action, performance (including flexibility), skills and ability, and competency in their role. The selection was carried out by one manager and checked by another, who managed the pool of employees on a day-to-day basis. Nicholls scored the lowest, primarily because he did not have particular product skills, but also because of lack of flexibility, as he was not always readily available at short notice to undertake customer-related engineering services. As a result he was made redundant.

In the ET
The employment tribunal found the redundancy was genuine and Rockwell had adopted a fair and reasonable procedure. However, it found the dismissal unfair because Nicholl’s marks for product skills and flexibility were not capable of objective assessment as being fair and accurate and did not reflect comments in his performance reviews. In reaching this outcome, the tribunal reminded itself that “it is not for us to substitute our view for that of the employer, and we have not done so”.

In the EAT
The EAT upheld the employer’s appeal. One reason for this was that the Court of Appeal, in British Aerospace v Green, made it clear that where a fair system of selection has been applied without any signs of unfairness, it’s not for a tribunal to conduct a detailed critique of individual scores. But that is exactly what this tribunal had done in circumstances where it accepted that a fair process had been followed.

And it had substituted its own view for that of the employer. A tribunal’s role is to determine whether the marks allocated were reasonable. But no findings had been made as to why the scores had been allocated, so how could the tribunal decide that those marking the employees had acted unreasonably?

Finally, as the EAT confirmed in Mitchells of Lancaster v Tattersall, selection criteria cannot be criticised just because they cannot be assessed objectively; selection can’t be reduced to a tick-box exercise. Matters of managerial judgment are inevitable and can, of course, be subjected to the ‘reasonableness’ test based on the reasons given by the managers concerned.

Comment
When faced with a redundancy selection exercise, an employer must apply fair selection criteria and be able to offer evidence that the criteria were relevant to the situation, reasonable in the circumstances, and applied honestly, which includes independently vetting the scores against the reasons for the marks allocated.

Regrettably, in some situations, as tribunal cases have shown, redundancy is used as an excuse to get rid of a poorly performing employee or, on the basis that ‘revenge is a dish best served cold’, as a form of pay-back for work clashes or disagreements that have arisen in the past, or just plain ‘face doesn’t fit’ scenarios. In these circumstances, markers have tried to manipulate the scoring to get the desired result.

In this redundancy-laden economy, where job losses are a feature of modern-day life, and employees are more ready than ever to challenge decisions because of difficulties getting alternative employment, this case highlights the need to ensure that relevant selection criteria are applied with honesty and integrity, and have been independently scrutinised. There is then no possible reason for a tribunal to apply the legal key provided by the British Aerospace case for ‘opening the door’ to an examination of the scoring process because the employer’s motives are in question.


Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton