The EAT, in the case of E-Zec Medical Transport Services Ltd v Gregory, has held that a redundancy dismissal was unfair where the application of the selection criteria was based on a manager's subjective personal judgement, unsupported by any objective evidence. It also suggested, controversially, that employees should routinely be consulted about the selection criteria to be used.

E-Zec proposed to make 4 compulsory redundancies from a pool of 14. There were nine selection criteria. The HR manager allocated marks for service, absence, sickness days, sickness occasions and discipline, based on data from the personnel files. The regional manager awarded scores for performance, commitment and attitude, skill base and team working based upon his personal experience of working with the employees in the pool. Ms Gregory was called into a meeting, told the marks she had achieved and given a letter stating that she was at risk of redundancy. Four days later she was called to another "consultation meeting" at which she was given a letter confirming her dismissal.

The tribunal held that the dismissal was unfair. Key criteria were "wholly subjective and incapable of objective measurement" and the regional manager, who was solely responsible for assessing these criteria, was unable to support his marking by reference to any documents or other evidence. He had not spoken to any other managers about the marking, nor had he made any notes nor given any indication of how he had reached his decisions. The EAT agreed with the tribunal and also criticised the fact that there had been no attempt to consult with the trade union or employees over selection criteria.

Impact on employers

  • The idea that employers should always consult employees about the selection criteria to be used is controversial and arguably a departure from established case law in this area. In collective redundancy exercises, there is an obligation to consult with employee representatives about selection criteria, but in other circumstances there has not been any such obligation.
  • Employers should explain selection criteria and allow employees to comment as part of individual consultation process, but it is debatable whether they need to consult separately about the criteria before the scoring exercise takes place – to have to do so would be invidious.
  • Whilst an employment tribunal will not undertake detailed analysis of the scoring process, it will consider whether a fair procedure has been followed and employers should:
  1. choose selection criteria that can be assessed objectively by reference to documents or examples;
  2. as part of the consultation process, explain the selection criteria and scoring process and allow employees the chance to comment upon them;
  3. ensure that managers keep notes to explain the scores they have awarded; and
  4. if possible, have all scores moderated to ensure consistency and minimise the risk of subjectivity.