Unfair Dismissal - Redundancy Scoring

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Should an employment tribunal find a redundancy dismissal unfair by examining the scoring in a selection process?

No, says the EAT (HHJ David Richardson presiding) in Nicholls v Rockwell Automation Ltd, unless the employer's motives were in question.

The Claimant's dismissal followed a redundancy scoring exercise. The employment tribunal had found that there was a redundancy situation and a fair process, applied with no ulterior motive, but held that the dismissal was unfair as certain scores were 'clearly lower than they should have been'. The tribunal made a Polkey reduction of one-third.

The EAT applied British Aerospace v Green and substituted a finding that the Claimant's dismissal was fair, holding that the employment tribunal had erred by:

• Engaging in a detailed critique of certain items of scoring in determining if it was reasonable for the employer to dismiss the Claimant, and;
• Substituting its own view for that of the employer.

The EAT followed an earlier EAT decision in Mitchells of Lancaster v Tattersall (bulletin 8th June 2012) holding that using criteria that were not capable of objective verification was not fatal to a redundancy selection scheme.

Both parties' appeals on the Polkey reduction were academic.