Charles Price
Monday 25th September 2023
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Article 21
New employment case on redundancy selection

Consultation must involve allowing the Claimant to comment on his selection scores for redundancy...

The EAT (HHJ Ansell) has handed down its decision in County Print v Page, which reinforces the proposition that: fair consultation in a redundancy exercise involves giving an employee an explanation for his scoring and a meaningful chance to comment on the scores.

In the seminal case of R v British Coal Corporation and Secretary of State for Trade and Industry ex parte Price and Others [1994] IRLR 72 Glidewell LJ said this:

"24. It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Council ex parte Bryant, reported, as far as I know, only at [1988] Crown Office Digest p19, when he said:

'Fair consultation means:

(a) consultation when the proposals are still at a formative stage;

(b) adequate information on which to respond;

(c) adequate time in which to respond;

(d) conscientious consideration by an authority of the response to consultation.'

The EAT took an opportunity to this and other authorities in this area, and, whilst cautioning against an impermissible "microscopic analysis" of scoring by tribunals, indicated that, particularly with subjective criteria, employees should have sufficient information to understand their scores and an opportunity to challenge them.
His Honour John Ansell commented: 'Had the Respondent been able to challenge the flexibility marking in the way that he sought to do before the Tribunal, those comments could have then been reported back to the markers for their consideration. If they then chose to adhere to their original scores it is difficult to conceive that the Tribunal would seek to interfere with that decision in those circumstances since there had been proper consultation'.

His Honour Justice Ansell further gave guidance on the 'Software' guidance:

(ii) Employers seeking to run a Polkey chance of dismissal in any event argument under Software 2000 must rely on "cogent evidence", rather than simply arguing that there was a percentage chance of dismissal. The Tribunal in this case had found that there was no cogent evidence to enable them to attempt to reconstruct "what might have been" (see Software paragraph 54 (3))On the facts of this case, the EAT observed that it was "completely fallacious" to say that as the Claimant was in a pool of three, there was a one-in-three chance of dismissal, even on similar scores.

Charles Price is a barrister at no5 Chambers


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