Nicholls v Rockwell Automation Ltd UKEAT/-540/11/SM

The Employment Appeal Tribunal (“EAT”) has reinforced the principle that a Tribunal should not embark on a detailed critique of a redundancy scoring exercise where it has been accepted that the system of selection is fair and there is no evidence of overt unfairness in the scoring.

In overturning the Tribunal’s decision that Mr Nicholls’ dismissal by reason of redundancy was unfair, the EAT noted in particular that the Tribunal had rejected findings by Rockwell’s management that Mr Nicholls did not have the requisite skills for his job. In the EAT’s view, the Tribunal had failed to identify why management reached its conclusion on this point and therefore could not justify its rejection of those conclusions as unreasonable.

As a result, the Tribunal had wrongly substituted its own view for that of the employer when considering the fairness of the selection process.

Implications

This is a helpful decision for employers faced with unfair dismissal allegations focussed on the fairness of a redundancy selection process. It renews the authority of a decision more than 15 years ago (British Aerospace v Green), that a selection process will be satisfactory where there is a system of selection which can reasonably be described as fair, and the system has been applied without overt signs of conduct that undermines its apparent fairness.

However, employers should keep in mind that the Tribunal has a large margin of discretion when it comes to determining the fairness of a dismissal. If a Tribunal has considered all the salient facts and found that no reasonable employer would have scored an employee in the way that the employer did, there will be little or no basis for an employer to challenge its decision on appeal. Employers should therefore keep the range of reasonable responses test at the forefront of decision making on scoring and selection processes.