Ensure you have evidence to support an employee’s score

One thing we come across on a regular basis is managers who are unable to point to hard evidence, such as personnel records or appraisal forms, to support the scores allocated as part of the selection process. Not only does this leave scope for the employee to challenge the scoring process, but it also increases the risk of a Tribunal claim. Procedural failures in redundancy dismissals are rarely worth pursuing by the employee because if the Tribunal concludes that the failure made no difference to the end result, the compensation awarded will be very limited. A failure in selection, however, is a different thing – that might mean that the “wrong” person was dismissed and that could generate a substantial claim for loss of earnings. Above and beyond demonstrating the existence of a redundancy situation in the first place, therefore, getting your selection processes right is key.

HR should oversee the scoring process to ensure it is being carried out consistently and that managers can point to something concrete to support their assessments – that they are not just relying on “gut feel”. Even if there is no paper record, managers should still be required to point to particular examples to support their stated views. Have an eye also to any deficiencies in the data your manager may be relying upon – do some managers turn a blind eye to staff taking sick days as holiday, for example? Are some managers renowned as “easy graders” and others as total swine in employee assessments?, and so on. And the burden to be sure about this is still greater where the criterion is relatively intangible – initiative, attitude team-working skills, etc. This is especially the case if the score is materially lower than would be suggested by the employee’s last appraisal.

It is consequently very important that appraisals are an accurate reflection of the employee’s performance in all these respects during the relevant period. There is no point in a manager giving an employee a good appraisal if his performance does not warrant this – it will simply make it harder to select for redundancy if the documentary evidence does not support the manager’s view of him. “Satisfactory” may well be intended to mean “unsatisfactory” and “average” to mean “below average” when used in an appraisal, but the Tribunal will not see it that way! Remember also that redundancy selection is an exercise in comparatives, not absolutes, so the appraisal needs to allow you to distinguish not just good from bad but also good from better.

This is a discipline which is hard to enforce at the best of times, where the manager’s prime concern at appraisal time is just getting through the process without a grievance, rather than laying the ground for a later selection exercise. You can encourage your managers to score as if to support a redundancy process whether there is actually one planned or not, but that will inevitably set hares running among those managers and may equally lead to some distortion of the scores as they detect an opportunity to achieve by redundancy something they have not managed by formal performance or absence processes.

If there are no appraisals (or none which support the proposed scores) then it will be helpful for HR to create its own notes of discussions with the relevant line managers as to how those scores are arrived at, either on absolute terms or at least as to why X is seen as a better long-term bet than Y. Try to ensure that the manager expressly approves the terms of that note so that there is less wriggle-room at a later date and he is obliged to focus properly on the precise mast(s) to which he is pinning his colours. HR’s intervention here may be seen as unnecessary fussiness and obstruction at the time but everyone will be grateful later (whether they can bring themselves to say so is obviously a separate question!). But remember that HR is not the decision-maker – so while you can query and challenge particular scores to test their resilience or fairness, you do not want to be seen to dictate the outcome or leave yourself exposed to that ghastly moment in Tribunal where your manager publically disowns the score in question, points to you in the back row and says “HR made me do it”.