A Senior HR Manager identified selection criteria in a redundancy process without consulting unions or employees and set up a process so the Regional Manager alone scored four criteria. The Regional Manager was unable to support his scoring. The Employment Appeal Tribunal upheld the Tribunal’s decision that the dismissal was unfair due to the process followed falling outside the band of reasonable responses (E-Zec Medical Transport Service Limited v Gregory).

Implications

This is a timely reminder that an employer going through a redundancy process should ensure that there is a fair method of selection and it is applied reasonably, in particular that:

  • any selection criteria are objective in so far as is possible;
  • any subjective criteria should stand up to scrutiny and be supported by evidence, and, ideally be marked by more than one person;
  • it is advisable to consult a union if there is one on any selection criteria.

Facts

Ms Gregory was employed as an administrator and ambulance driver by E-Zec Medical Transport Service Limited. E-Zec operated a private ambulance service and an important part of their business was the transportation of injured and sick holidaymakers who had been repatriated back to the UK. There was a downturn in work so E-Zec decided to restructure the site at which Ms Gregory worked.

It was decided to make 4 employees redundant out of a pool of fourteen. One person volunteered and two others were successful in applying for posts at another site. The selection process was supervised by a Senior HR Manager, who identified nine selection criteria and who allocated marks for: service; absence; sickness days; sickness occasions and discipline (based on information in the personnel files). The Senior HR Manager arranged for the employee’s line manager, the Regional Manager, to use his experience of working with the employees to mark the other criteria: performance; commitment and attitude; skill base and team working.

On 8 January 2007 Ms Gregory was called to a meeting, told the marks she had been awarded and given a letter confirming that she was at risk of redundancy. She was invited to a further meeting on 12 January 2007 at which she was given a letter confirming her dismissal.

The EAT noted the Tribunal's finding that there had been no attempt to consult with the unions or employees as to the method of selection, the criteria to be adopted or the marking process. It referred to previous case guidance that, whether or not agreement on criteria is reached with a union, an employer should establish criteria which so far as is possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance records, efficiency at the job, experience, or length of service. The Regional Manager, who had assessed key criteria alone, was unable to support his marking by reference to any company documents such as performance appraisals, had not spoken to any other manager concerning his marking and had not made any notes or given any indication how he had come to his decisions.

The EAT held that the tribunal, which had made it clear that it was not subjecting E-Zec's marking system to a microscopic analysis, had been entitled to check that a fair system had been in operation and to conclude that the selection process had fallen outside the band of reasonable decisions and was unfair.