13 December 2011 #Employment
A recent EAT decision highlights that a flaw in one stage of the redundancy process will not render a dismissal unfair.
In the case of Camelot Group plc v Hogg, a restructuring of the organisation commenced. The Claimant came sixth out of seven candidates in a scoring exercise. Due to her low score she did not secure a position in the new structure. The Claimant then asked to see her interview notes, but notably she did not challenge any of her scores. The notes were sent to her shortly before a meeting, at which she was told that her employment would be terminated imminently, by reason of redundancy. The employee then brought a claim unfair dismissal on the basis that some employees had been excluded from the redundancy process and not all those who sought voluntary redundancy were made redundant.
The tribunal found the dismissal unfair, but the Claimant was refused permission to amend her claim to challenge her scores in the assessment process. The EAT decision in John Brown Engineering Ltd v Brown was considered which demonstrated that if an employee gives reasonable notice that they wish to challenge the application of the assessment criteria, they must be given a reasonable opportunity do so. The tribunal deduced that by requesting her interview notes/scores, the Claimant had given reasonable notice that she did not agree with her scores and therefore reserved her right to challenge it. In dismissing the Claimant before the final consultation meeting, the company failed to allow her the opportunity to challenge her assessment.
The EAT overturned the tribunal`s decision that the redundancy was procedurally unfair because the decision to dismiss was taken before the interview notes the claimant requested were provided. They held that the tribunal had based their case on arguments that had not been set out in the ET1. They stated that in John Brown Engineering Ltd v Brown there was no requirement for an employee to be provided with interview notes prior to any decision to dismiss where they have made only a general challenge to the redundancy assessment criteria. An employer who has received a request for specific information would be well advised to provide it, but is not required to do so in respect of every unspecific request for documentation, with no reasoned justification. Moreover, the Tribunal failed consider whether there was a fair redundancy process. There was no basis on which it could be concluded that the decision to dismiss the Claimant was not fair.
The tribunal also failed to consider that the Claimant did not complain about the interview notes and she had no basis on which to challenge the scoring. Therefore a Polkey deduction of 100 per cent was appropriate.