- employers will breach step two of the statutory dismissal procedure if they do not provide in advance to employees sufficient information to allow him/her to understand and challenge why s/he has been selected for redundancy;
- it will depend on the circumstances of each case what amounts to "sufficient information" in order to comply with the statutory procedures; and
- breach of step two cannot be "cured" at an appeal hearing.
(Decision by the EAT in G M Davies v Farnborough College of Technology (2007))
To avoid an automatic unfair dismissal, employers need to:
- provide employees information in advance of a step two meeting;
- which is sufficient to allow him/her to understand and challenge why s/he has been selected for redundancy.
What is sufficient will depend on the circumstances.
Good practice would be to provide the employee's actual scores and failure to do so may render the dismissal automatically unfair. As the information given has to be sufficient to enable him/her to challenge their selection for redundancy, it is difficult to see how an employer can achieve this without providing the employee with his/her score and details of how they fared.
Also, depending on the circumstances, it may well be that employers need to give more information than just the actual mark, such as how it arrived at that mark.
Be careful to get this stage right, as there's no second chance at appeal! The more information that you can give about the basis of selection, the better.
The Claimant was employed by the Respondent as a lecturer. After a decline in the demand for the courses he taught he was told by letter that he and two other staff had been chosen for redundancy. The selection criteria were set out in that letter but the Claimant was not told how he had been assessed against that criteria.
It was only during the meeting the Claimant was told that, after application of the whole range of the criteria, he had the lowest score and would therefore be made redundant and he was not given the opportunity to challenge and respond to that information.
The Claimant appealed on the basis that he did not accept that he had the lowest score of the three people selected. At the appeal meeting the Claimant was given the opportunity to challenge, correct and supplement the conclusions about himself in relation to the criteria.
The Tribunal concluded that, although it was unfortunate that the Claimant had not been given the opportunity to have a full discussion in respect of the application of the selection criteria until the appeal hearing, the Respondent had acted reasonably and not breached procedures. The Tribunal also concluded that any defect had been cured at the appeal stage.
The Claimant appealed.
The EAT held that the Respondent had failed to:
- provide the Claimant before the meeting with sufficient explanation of the basis of its decision to make him redundant; and
- not given him sufficient opportunity to understand or challenge that basis (although this did not necessarily involve the need to disclose the actual marks).
The EAT held there was a breach of step two of the statutory procedures, and the Tribunal should have concluded that there had been automatic unfair dismissal.
Further, the Tribunal erred in concluding that any defect had been cured at the appeal hearing. Any breach of statutory procedure amounting to automatic unfair dismissal could not be cured at an appeal hearing.
(However, the EAT did reduce the compensatory award to nil on the basis that even if the correct procedures had been complied with the same outcome would have occurred).
You are, however, reminded of the earlier case of Bridgen, in which the EAT gave guidance on the information that must be given by an employer during the standard disciplinary and dismissal procedure.
In this case, the EAT stated that in a redundancy situation the employer should notify the employee of the redundancy selection criteria which have been used, and also the assessment of that employee. The EAT did suggest that providing details of the assessment scores of other candidates was not required in order to comply with the statutory minimum procedure. However, sufficient information does need to be given so that employees understand how they fared as against others in the pool for selection, and this is likely to require disclosure of the other employees' scorings.