The EAT has held that when carrying out a redundancy exercise employers must give an employee an explanation for his score and a meaningful chance to comment on it.

The employee was selected for redundancy from a pool of three using a point scoring scheme but was not given sufficient information to understand and challenge his score. The tribunal held that the employer had failed to provide an explanation for how it had arrived at the employee’s score and so the consultation process was unfair.

The EAT also held that the employer had provided no “cogent evidence” for its Polkey argument that the employee would have been dismissed in any event, and could not rely on the argument that, given the closeness of the marks between the employees in the pool, there was a one-in-three chance that the employee would have been dismissed anyway. The decision indicates that employers seeking to rely on a Polkey argument that a redundant employee would have been dismissed in any event cannot simply argue that as the employee was placed in a pool of three for redundancy they had a 33% chance of dismissal.

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