Assessing the fairness of redundancy scores

The Employment Appeal Tribunal has handed down a very useful decision in Dabson v David Cover and Sons stating that when assessing the fairness of selection for redundancy, the marks awarded in the scoring process should only be investigated by the Tribunal in exceptional circumstances such as bias or obvious mistake.

The Respondent was a family run transport business and the Claimant had been employed since 1981, and had worked his way up from the yard to a Transport Manager. Redundancies had to take place and the Claimant was pooled with another candidate. The Claimant's scores were the lowest and he was selected for redundancy. The Claimant then disputed his scores and issued a claim of unfair dismissal primarily on the basis that he had not been fairly scored.

The Tribunal found no evidence that the Claimant had been deliberately underscored and were satisfied that the assessor had formed a genuine belief that he had scored the Claimant fairly and reasonably. The Tribunal said that it was not for them to "re-score" the Claimant. As such, the Tribunal was satisfied that the dismissal was fair and within the reasonable range of responses. The Claimant appealed.

Courts and Tribunals have considered on a number of occasions the principles relevant to the investigation and marking of scores in a redundancy exercise. Previous cases have made it clear that scrutiny on the part of the Tribunal is inappropriate. The EAT strongly reaffirmed these cases. What is in issue is the question of fairness of the selection procedure and marking should only be investigated where there are exceptional circumstances such as bias or mistake. The EAT quoted Lord Caulsfield in the case of Eaton v King [1995] IRLR 75 - "every redundancy situation is one of distress for employees who are affected; and every redundancy situation is one in which hard decisions have to be made. It is, however, essential to remember that what is required of the employer is that he should act reasonably".

This case confirms that an Employment Tribunal should only investigate marking where there was evidence of an absence of good faith or obvious error. At a time when employers had been called on to make hard decisions on redundancies, this is a timely and useful case which reaffirms and strengthens the law.

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Author Profile: David Malamatenios
Date published: 17th May 2011