In a decision of the Employment Appeal Tribunal (Pinewood Repro Ltd v Page) towards the end of 2010 a helpful and timely reminder was given to employers using subjective criteria in redundancy situations.
In anticipation of a redundancy exercise the employer and union agreed selection criteria which included some which were objectively assessable and some which were inevitably subjective. Mr Page was not a member of the union. He was one of a pool of three employees from which one would be selected for redundancy. Mr Page was marked less well than colleagues on the subjective criteria of ability, skill, experience and flexibility, particularly, probably crucially, on the latter.
In the consultation process Mr Page asked for information about and queried the marking on the subjective criteria. These enquiries were answered by managers, who had not carried out the marking exercise, in very broad terms.They did not explain how the scores for the Claimant had been arrived at. They simply said the scores were reasonable and appropriate". Further, although on each sheet of the scoring sheets was a column providing for "justification/comment/example of performance", no comments had been made on any of the scoring sheets.
Mr Page was therefore really none the wiser as to why he was deemed a poorer employee than his two surviving colleagues. The Tribunal found that the lack of openness about the marking of the subjective issues , particularly the flexibility criterion, made the dismissal unfair.
The Employment Appeal Tribunal in dismissing the employer’s appeal said that
“It may well be that it is too broad a principle for the Tribunal to set out as they did that it is necessary for an employer to provide an explanation of why an individual has received the scores that he has. (my italics) If those scores were to do with issues such as attendance, timekeeping, conduct, productivity, further explanation may not be necessary. It is, in our view, for a Tribunal to decide whether an employee has been given a fair and proper opportunity to understand fully the matters about which it is being consulted and to express its views on those subjects and with the consultor thereafter considering those views properly and genuinely and that may well include being given sufficient information to be able to challenge the scores given to him in the completion of a redundancy exercise. In the modern climate much of this information would hopefully have been available to an employee via a previous appraisal process.”
The message here is by way of, first, a reminder to employers that using subjective criteria is always problematic. Second, if forced to use subjective criteria then an employer must be prepared to provide more than just a mark but some justification for how a mark was arrived at.
For many employers the use of objective criteria is often a problem. Because of all the other pressures on business, keeping close records of output, time-keeping and so on may be too time consuming and deemed to be of little value and so such records are not maintained. However, when redundancy time comes along they may make the selection of staff for redundancy a whole lot easier.
By the same token employees should be firm when pushing for information about scores and the rationale for them when faced with a redundancy process.
