Two recent cases of the EAT have laid down clear limits on the approach to be taken in assessing redundancy exercises in cases of unfair dismissal.
In Nicholls v Rockwell Automation Ltd [2012] UKEAT/0540/11/SM an employee was assessed for redundancy through a points-based exercise. The Tribunal went through this exercise and decided that it was unfair for two reasons. First, because some of the criteria were ‘not capable of objective assessment’, and second because some of ‘the marks given to the claimant do not actually reflect what was recorded in the relevant documentary evidence’.
The EAT rejected this approach. They noted that the Tribunal made ‘no findings as to why the markers had addtributed the marks they did to the items in question’, and therefore had no basis for assessing whether they were reasonable. Rather, the Tribunal had fallen into the error of substituting its own view for that of the employer.
Further, the EAT affirmed its view in Mitchells Of Lancaster (Brewers) Ltd v Tattersall [2012] UKEAT/0605/11/SM: it is not fair to object to criteria simply on the basis that they are subjective. Not every criterion has to be objective; the question is whether ‘overall the redundancy criteria were reasonable’. That a criterion is subjective does not mean that it ‘cannot be assessed in a dispassionate or objective way’. The EAT were keen to avoid such an objection being ‘invoked to limit selection procedures to box-ticking exercises.’
