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Redundancy selection criteria
In the case of British Aerospace v Green Millett LJ observed that when an employer carries out a redundancy exercise it is:
‘... sufficient for the employer to show that he has set up a good system of selection and that it was fairly administered, and that ordinarily there is no need for the employer to justify all the assessments on which the selection for redundancy was based.'
The EAT recently considered the question of when, if ever, it is appropriate for an employment tribunal to scrutinise the assessments and/or scores applied to employees in the context of a redundancy exercise.
Sanmina SCI UK Ltd v Mccormack and others
The employer in question applied redundancy selection criteria that included appraisals, overtime worked, absences and critical skills. When scoring the employees in relation to sickness absence, the employer did not distinguish between the causes of absence (eg disability-related absence) other than for industrial injury, although the Bradford criterion was applied. This significantly weights the nature of absences so that a long-term absence for a single illness is much less seriously treated than a series of short illnesses making up the same total duration.
The first instance tribunal considered that the employer had been unreasonable because it had not taken the reason for illness into account. The EAT criticised this approach. It held that it was not the tribunal's role to substitute what it considered to be fairer selection criteria and carry out an over-minute analysis of the objective criteria selected by the employer. Employers who are using absence records as part of their selection criteria should consider whether the scoring needs to be amended, by way of reasonable adjustment, in relation to employees who have been absent for a disability-related reason. This issue was not considered by the EAT on the facts, and therefore employers should not draw false comfort from its finding that the reason for absence should not be considered.
An employer that has drawn up objective selection criteria that are fairly applied should not be vulnerable to claims of unfair dismissal, provided that the procedure followed is fair. In this case, the selected employees were given their ‘scores' following the application of the selection criteria prior to a second consultation meeting at which they were to have the opportunity to comment on the scores if they wished. Unfortunately, at the beginning of the consultation meeting and before they had the opportunity to comment, the employees were told that they were redundant. This rendered the dismissals unfair.
British Aerospace v Green [1995] IRLR 433
Sanmina SCI UK Ltd v McCormack and others EAT 0066/05
Tania Stevenson, professional support lawyer, Clifford Chance LLP
E-mail: Tania.Stevenson@cliffordchance.com