Challenging the selection process

[page 59]

A tribunal will not scrutinise the chosen selection procedure too closely, and is unlikely to find a dismissal unfair on the basis of the redundancy selection process if:

• the process is broadly fair;

• each employee gets a proper chance to challenge their selection;

• there is no evidence of discrimination, victimisation, or selection for an automatically unfair reason; and

• there is no credible evidence of bias or significant factual error.

In Inchcape Retail Limited v Symonds [2009] UKEAT 0316/09/0312, the EAT commented: “Good faith assessments by an employer of an employee’s qualities are not normally liable to be second-guessed by an employment tribunal.”

Even so, the EAT confirmed in Pinewood Repro Limited t/a County Print v Page [2010] UKEAT 0028 that fair consultation implicitly requires candidates to be given not just their scores but also a meaningful explanation as to how those scores were arrived at, so that they can respond and argue their case. This is especially important where, as in the Pinewood case, the employee is being scored on subjective and not easily verifiable criteria such as “flexibility”. The EAT said that failing to give Mr Page, who had 23 years’ experience as an estimator in a printing company, an explanation of his scores, even when asked, made the dismissal unfair because it robbed him of a genuine opportunity to challenge the decision.