In selecting employees for redundancy, the employer carried out a competence assessment which failed to take into the opinion of managers who had worked with the relevant employees. Managers found the results ‘surprising’ and considered they had led to the selection and dismissal of some ‘very good workers’. The employer was held liable for unfair dismissal.
Employment Appeal Tribunal, 2013. Full judgment bailii.org.
The employer ran a residential home/hospital for patients with mental health or learning disabilities. It decided to close one ward, leading to a redundancy situation. Rather than just making redundant the staff who worked on that ward, the employer decided to look at all the nursing and support staff in the home, and conduct an assessment to select which 19 should be made redundant.
The most important part of the assessment was a competency assessment. This was made up of a written assessment; an interview; and a ‘verbal group assessment’, which took the form of a group discussion of a hypothetical scenario presented to the employees.
The competency scores did not include any assessments of competence from managers who had worked with the employees in question and were in a position to judge their qualities either by obtaining the managers’ views or by reference to past appraisals. The competency scores were acknowledged by managers to be ‘surprising’ and to have led to the selection of some ‘very good workers’. However, redundancies proceeded on the basis of the scores, because the process was thought to have been ‘robust’. Two of those made redundant claimed unfair dismissal.
Decision: liable for unfair dismissal
The employment tribunal, upheld by the Employment Appeal Tribunal, decided that the employer was liable for unfair dismisal. The assessment criteria were those normally used by the employer for recruitment. The employer had failed to consider such matters as length of service, appraisal records, the opinion of managers who had known the employees concerned, so that views could be sought of the work records of the individuals concerned. The system used by the respondents was ‘grossly unfair’.
The tribunal also made other criticisms of the fairness of the selection. One point that may be of particular interest as regards stammering: 17. ….’The Tribunal was critical of the “scenario” assessments. It said that an assessment of the kind carried out, without any facilitation, was likely unfairly to favour those employees who had to use our phrase rather than the Tribunal?s an outgoing personality and that it would disadvantage those who were “retiring and thoughtful”. It suggested that that may well have been the case for [one of the claimants], who it had observed as a witness and who had scored particularly low on this assessment.’…..
29. We [the Employment Appeal Tribunal] can see nothing wrong in what [the Employment Tribunal] says there. Again, the criticism would not by itself vitiate the fairness of the procedure, but it is a relevant factor in the overall assessment, and it is related to the Tribunal?s criticism of the way in which the procedure adopted was out of touch with actual performance.
For one thing, this case rather illustrates how unreliable competency assessments can be.
This was an unfair dismissal case, rather than one under the Equality Act. If a person’s disability had disadvantaged them in the assessment, the tribunal would doubtless have applied a more strenuous test. For example as regards the ‘scenario’ assessments done in a group, the tribunal would probably have considered whether any appropriate reasonable adjustments were made, and whether the objective justification defence was met. Unlike unfair dismissal, the tribunal can take its own view on these issues under the Equality Act, eg on whether it is reasonable for an employer to have to make an adjustment. On a claim for unfair dismissal (as in this case), the tribunal can only consider whether the dismissal lay within the range of conduct which a reasonable employer could have adopted – the tribunal cannot substitute its own view of what would have been fair.