Redundancy Selection – Subjective Performance Assessment is Not Enough
15 Feb 2022
Conducting a fair redundancy process requires a careful, almost forensic approach and it is almost never good enough for employers to rely on a subjective assessment of an employee’s past performance. An Employment Tribunal (ET) succinctly made that point in upholding an IT engineer’s unfair dismissal claim (Maxwell v Capacity2Learn Ltd).
A small company needed to make cost savings due to the impact of the COVID-19 pandemic and decided that one of its two IT engineers should be made redundant. A selection process was conducted whereby the engineers were scored on matters ranging from their technical skills to their drive and motivation and customer feedback about them. The engineer who scored lower was dismissed.
There was no dispute that a genuine redundancy situation had arisen. In upholding the man’s complaint, however, the ET found that there was a failure to consult with him meaningfully prior to his dismissal. There was only one consultation meeting, at an early stage in the process, and he was not informed of the full selection criteria. It was not explained to him how his score had been arrived at.
He had very little input into the inherently vague and unclear selection criteria. The end result depended largely on his boss’s subjective assessment. All the criteria, save for attendance levels, were based on her unchallengeable opinion as marker, rather than by reference to any objective evidence. She accepted that she had been influenced by factors that lay outside the strict ambit of the selection criteria, particularly his perceived reluctance to use MS Teams. He was not marked against the selection criteria as properly understood or applied appropriately.
The ET noted that the whole exercise was redolent of a dismissal for performance, capability and past conduct issues. The selection process was unreasonable in that it had, in effect, been used as a guise to weed out what the company considered to be a poor-performing employee. If not agreed, the amount of the man’s compensation would be assessed at a further hearing.