Employment Tribunals must not embark on a detailed critique of an employee’s redundancy scores, reminds the Employment Appeal Tribunal in a valuable judgement for employers on redundancy scoring. The employer in this case was supported by EEF.
Mr Nicholls was employed by Rockwell Automation Limited (an EEF member company) as a field service engineer. In 2010, Rockwell decided to make costs savings in its field service engineering department and started a redundancy process. Rockwell put together a matrix involving a number of selection criteria and a scoring system. The marking was carried out by one manager and checked by another.
Mr Nicholls was selected for redundancy on the basis that his scores were the lowest. He brought a claim for unfair dismissal, alleging (essentially) that there was no genuine redundancy situation, and that his selection had been engineered and was motivated by a desire to get rid of him for other reasons. He also claimed that the procedure adopted was unfair and that his scores were too low.
Rockwell initially lost the case at the Employment Tribunal. The Tribunal said “the marks given to the claimant during the process do not appear to us accurately to reflect the claimant’s capabilities”. It went on to give reasons as to why it thought Mr Nicholls’ scores should have been higher.
EEF supported Rockwell in successfully appealing this decision to the Employment Appeal Tribunal (EAT).
The EAT agreed with our argument that the Tribunal had wrongly subjected aspects of the scoring to minute investigation, when there was no good reason for embarking on an exercise of investigating the individual scores. Referring to previous case law on this topic, the EAT re-iterated the point that:
“Once granted that there is a fair system of selection applied without overt signs of unfairness it was not for the Tribunal to embark on a detailed critique of individual items of scoring”.
Instead of asking why the managers attributed the marks they did and then reviewing whether those reasons were reasonable, the Tribunal had wrongly substituted its own view for that of the employer.
The EAT also referred to its recent judgement in Mitchells of Lancaster v Tattershall (reported to members here) which confirms that the law does not require every aspect of a marking scheme to be objectively justifiable and that it is acceptable to rely on management judgement.
Redundancy selection processes are fundamentally about retaining the right individuals to meet the needs of the business going forward.
It is not always possible to achieve this by using purely objectively-assessable criteria such as quantity of production, attendance and disciplinary records. Sometimes, to achieve the right workforce profile going forward, you need to include some “subjective” assessments of an individual’s skills, attributes and performance. If you cannot rely solely on existing assessments (for example because your existing performance management systems are not sufficiently robust or do not assess the relevant criteria), you will need to adopt (as Rockwell did) a scoring system. EEF’s advice in these situations is to:
- choose criteria which can be scored by two managers who know the employee's work and which can be backed up by examples;
- ensure that any subjective criteria are balanced by enough objective criteria in the matrix; and
- avoid using criteria which depend solely on the opinion of the person carrying out the scoring at the time of the redundancy exercise.
If you follow this guidance then, as long as there is no obvious reason for the Employment Tribunal to think that the exercise was carried out unfairly, the Employment Tribunal should not subject your scores to a forensic assessment.
For detailed and practical guidance on putting together a selection matrix – see our tool on putting together a selection matrix in our Managing Redundancies toolkit
Download a copy of the full judgement in Nicholls v Rockwell Automation Limited
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