March 15, 2013

I don’t know about you, but I was always under the impression that redundancy selection criteria should be as objective as possible.  But judging by a recent EAT decision, it seems that there are limits to how objective you should be. The case (Mental Health Care (UK) Ltd v Biluan & another)  involved a hospital that needed to make 19 redundancies.  In an attempt to avoid subjectivity and bias, the employer devised an elaborate selection process involving a series of competency tests normally used to recruit new employees.  The assessment was carried out by members of the HR team who hadn’t had any prior experience of working with the employees in the selection pool.  They didn’t obtain assessments from the managers who had worked with the employees nor did they consult past appraisals (apparently this was because the employer took the view that the appraisal data was not reliable).  A couple of the individuals who were selected for redundancy brought claims for unfair dismissal. The tribunal and EAT upheld the claims on the basis that it was unreasonable for the selection process to be based entirely on recruitment-style assessments, without any reference to past appraisals or the views of the managers.  This was confirmed by the fact that the process had produced what the employer admitted were “very surprising” results.  The EAT found that the employer’s “blind faith in process” had led to it losing touch with common sense and fairness. Another interesting aspect of the decision is that, even though the method of selection was criticised, the EAT found that the consultation process was not unfair even though there had been no individual consultation meetings and the employees were not told what their individual scores were. So the message seems to be this: although it’s still the case that redundancy selection criteria should be reasonably objective, it’s possible that you can go too far.  A bit of subjectivity in the criteria may be necessary to ensure fairness. Here’s a copy of the decision:- http://www.bailii.org/uk/cases/UKEAT/2013/0248_12_2802.html For further information please contact Marcus Rowland marcus.rowland@wiggin.co.uk / 0207 927 9677