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5. SELECTION METHODS, SCORING AND CONSULTATION
An employer should consult on the method of selection, including scoring, and should apply chosen criteria fairly.
An employer has a great deal of flexibility when deciding on selection methods and scoring. As long as the method is one a reasonable employer could adopt and there is no discrimination, bias or factual error (for example, a miscalculated absence record or length of service), tribunals rarely challenge an employer’s selection decision.
In particular, tribunals are not allowed to closely scrutinise scores or selection methods, or substitute their own preferred score. This is an error of law and there are many examples of successful appeals by employers on this basis. All that is expected of the employer is a fair process, in which each employee has the chance to challenge their selection. “In general, the employer who sets up a system of selection which can reasonably be described as fair, and applies it without any overt sign of conduct which mars its fairness, will have done all that the law requires of him” (British Aerospace PLC v Green [1995] EWCA Civ26).
For example:
A claimant worked for three years for Amazon as a senior recruiter at grade 6. A second worker joined him from a different grade 5 post in another part of the business. Six months later, Amazon decided it only needed one recruiter due to a downturn. It selected on the basis of a performance review over the past two years, including the selection criterion “leadership principles and values”.
The candidate with only six months’ experience in the post scored highest and was given the position and the claimant was made redundant. The EAT said the dismissal was fair. The tribunal had found the procedure unfair because differences in seniority and time in post between the two candidates meant it was not a like-for-like comparison. The EAT said this approach was mistaken. Just because the employer‘s redundancy process did not match the best practice the tribunal would have preferred to see, this did not make the selection method unfair.
Amazon.co.uk Limited v Hurdus [2011] UKEAT/0377/10/RN
An offer to deselect an employee facing redundancy only if she could nominate an alternative candidate made her dismissal unfair (Boulton and Paul v Arnold [1994] IRLR 532).
The absence of safeguards to check the accuracy of a redundancy selection process, such as arranging for a third party to re-mark the scores, will not make the dismissal unfair, as long as the employer has met the basic requirements of a fair process and there is no evidence of obvious mistake (First Scottish Searching Services Ltd v McDine [2011] UKEATS/0051/10/B1).