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Unfair Selection for Redundancy

21 June 2012 #Employment

In the case of Mitchells of Lancaster (Brewers) Ltd v Tattersall it was decided that the use of subjective redundancy criteria was appropriate.

Mr Tattersall was one of the five senior managers at Lancaster (Brewers) Ltd, who was unfairly dismissed after a flawed redundancy selection process, but within a 20% Polkey deduction. The Company appealed on several grounds, but the EAT upheld the decision that Mr Tattersall was the victim of an unfair dismissal. However, it did not agree with the ET that the Company’s subjective selection criteria was unacceptable. Incidentally the Company had formulated selection criteria that was based on assessing which role in that team could be lost with the least effect on its business.

Interestingly, the EAT stated that even though subjective criteria were matters of judgment, it did not mean the criteria was overall considered to be inappropriate. They warned that sometimes using specific and standard scoring criterion could be deemed irrelevant, as it could in fact be invoked simply be a box-ticking exercise, which would fail to consider the context of a organisational situation. In relation to this they also suggested that for a relatively small company in serious financial difficulty, it was hard to see how it was inappropriate for the Company to apply the criteria they used. Therefore the EAT overturned the ET`s 20% Polkey deduction.

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