Pinewood Repro Ltd v Page
FACTS
Mr Page had worked as an estimator for Pinewood Repro Ltd (Pinewood) for 23 years. Pinewood announced in January 2009 that there were to be redundancy dismissals. The scoring matrix headings were agreed with the union.
Mr Page was notified that he was provisionally selected for redundancy and subsequently attended a series of redundancy consultation meetings. He was given a copy of his personal scorings and was shown the scores of others in his department.
During the consultation process, Mr Page queried his scores, in particular those relating to the categories of abilities, skills and experience. His employer wrote to him saying that it believed that “the scores given by the assessors [were] reasonable and appropriate”. In response to his appeal against dismissal, Mr Page was told that the appeals officer was “satisfied that the scoring was factual and correct”.
Mr Page brought a claim for unfair dismissal.
DECISION
The employment tribunal decided that Mr Page had been unfairly dismissed. It held that it is necessary for an employer undertaking a redundancy selection exercise to provide an explanation as to why an individual has received the allocated scores. Pinewood had failed to do this, even when asked directly to do so by Mr Page and, as such, it was impossible for Mr Page to dispute his selection.
The tribunal also refused to make any reduction to compensation to take account of the employer’s argument that Mr Page would have been dismissed in any event. Mr Page’s marks were so close to those of his two other colleagues in the pool that the opportunity to challenge the scoring may well have resulted in a different outcome to the redundancy selection process.
Pinewood appealed against the unfair dismissal finding. The EAT decided that the tribunal was entitled to find the dismissal unfair, given the employer’s failure to explain to Mr Page why he had been scored lower than two other people. The EAT commented that adequate information must be provided to which an employee can respond and argue his case. This had not happened here.
The EAT commented: “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.”
The EAT also upheld the tribunal’s decision to make no reduction to compensation, given that Pinewood had presented no evidence to the tribunal demonstrating that Mr Page would have been dismissed in any event. It dismissed the one-in-three argument advanced by the employer as involving too much speculation.
IMPLICATIONS
Although the EAT agreed with the tribunal’s unfair dismissal decision in this particular case, it did indicate that the general principle set out by the tribunal in its decision that it is necessary for an employer to provide an explanation of its scoring is too broad. Such an approach could easily stray into the territory of tribunals interfering with the scoring and substituting their score for that of the employer.
However, what is clear is that a discussion of an employee’s scores must form part of a proper redundancy consultation exercise and there will be some cases, as here, where proper consultation will only be possible where the employee is provided with an explanation as to why he or she has been allocated certain scores.
Clare Gregory, partner, DLA Piper
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