10 November 2010 #Employment
In the case of Pinewood Repro Ltd T/A County Print v Page UKEAT/0028/10/SM, the Claimant alleged that his employer failed to provide him with an adequate explanation of why he had received lower scores than the two other people in the pool for redundancy. The Claimant had asked for an explanation of why he had received certain scores, in particular in relation to subjective criteria, such as flexibility. He was told by his employer that it believed the scores given were reasonable and appropriate. The scorers were not asked to reassess their scores in light of his comments.
The EAT indicated that had this happened, the dismissal may have been fair. The EAT found that fair consultation in a redundancy exercise involves giving an employee an explanation for his scoring and a meaningful chance to comment on the scores. In this case it did not help that the scoring matrix had a column for ‘justification/comment/example of performance` but no comments had been made on any of the scoring sheets and no evidence to support the marks, such as appraisals, could be presented as evidence. There were also only three employees in the pool, the scoring was close and so a reassessment could have made a difference for the Claimant. That said, the EAT did caution against ‘microscopic analysis` of scoring by Tribunals.
The EAT also considered the issue of Polkey and found that employers seeking to run the argument that the employee would be dismissed anyway, regardless of flaws in process must rely on "cogent evidence", rather than simply arguing that there was a percentage chance of dismissal. On the facts of this case, the EAT observed that it was "completely fallacious" to say that as the Claimant was in a pool of three, there was a one-in-three chance of dismissal, even on similar scores.