In the recent caseof Semple Fraser LLP v Daly the Employment Appeal Tribunal helpfully reminds employers and employees of some important practical points in redundancy situations about the limits on how far a Tribunal (“EAT”) can explore selection marks in an unfair dismissal redundancy case.
Ms Daly, the claimant in this case, was a solicitor facing redundancy because of a downturn in work. There was only one other solicitor in the selection pool and that other solicitor scored higher. So, claimant was dismissed. On her claim for unfair dismissal the tribunal thought that the scoring had not been properly done. They set about rescoring the two candidates and found that they came out equal and held that therefore the dismissal of the claimant was unfair.
The EAT upheld the employer's appeal. The short answer was that it was illogical that if the scores came out equal it must have been unfair to choose the claimant. However, a point of wider interest legally is that the EAT also held that the tribunal should not have carried out the rescoring exercise in the first place. It is clearly established that the task of the tribunal is to determine whether the system adopted for choice was fair and was applied without any overt sign of conduct which might mar this.
This was a point reiterated in another case in the EAT in which it was said
The tribunal is not entitled to embark upon a reassessment exercise.
In the Daly case it was added
“… it is not the case that it will never be appropriate for a Tribunal to examine scoring in a redundancy case, a Tribunal would require to have a sound basis for doing so. There would require to be some finding which pointed to the possibility of the employer not having acted reasonably in devising or applying the scoring system adopted (such as, for instance, a finding that the employer had an ulterior motive or that he intended the system to produce a particular result so far as the identity of those to be made redundant was concerned). Mere suspicion on the part of the claimant employee would not be enough.'
So, as long as the employer has devised a fair marking system and the dismissed employee cannot show that it has been devised to ensure his failure or demonstrate that there is a clear mistake or inconsistency in the marking (e.g. a very low mark for one criterion in the face of a recent appraisal which had attracted a high mark for the same quality) an employee will find it difficult to impugn the marks he received
