ACAS Guideline - Redundancy handling

Luckyspal

In the above Guidlines it states, "The drawing up of criteria, however, is not enough to guarantee fair and reasonable selection. Even though the criteria may satisfy the test of objectivity, the selection will still be unfair if they are carelessly or mistakenly applied".


Please could someone tell me how robust this statement is as an argument at a Tribunal? Could one build and win a case for unfair dismissal by proving this statement to apply in a specific case? Has this situation been tested in law previously?


Thanks for any advice.


Luckyspal

amyface

Luckyspal wrote: »

In the above Guidlines it states, "The drawing up of criteria, however, is not enough to guarantee fair and reasonable selection. Even though the criteria may satisfy the test of objectivity, the selection will still be unfair if they are carelessly or mistakenly applied".


Please could someone tell me how robust this statement is as an argument at a Tribunal? Could one build and win a case for unfair dismissal by proving this statement to apply in a specific case? Has this situation been tested in law previously?


Thanks for any advice.


Luckyspal

I would believe the above is robust enough if the evidence backs up the latter - i.e. if things were carelessly and mistakenly applied. As they say Just setting up criteria doesn't mean fair selection if the people involved make a right horlicks of applying the facts - i imagine its like any system - poo in poo out!

So if they use criteria like say qualifications or attendance and then apply markings inconsistent to the facts supporting the judgement then I would hope there could potentially be the basis for considering an unfair dismissal case as they are not applying the process they initiated.

Its difficult to leap towards saying you necessarily could win a case as each case will be different and have different levels of ineptness underpinning the marking process.

Ewarwoowar2

Luckyspal wrote: »

In the above Guidlines it states, "The drawing up of criteria, however, is not enough to guarantee fair and reasonable selection. Even though the criteria may satisfy the test of objectivity, the selection will still be unfair if they are carelessly or mistakenly applied".


Please could someone tell me how robust this statement is as an argument at a Tribunal? Could one build and win a case for unfair dismissal by proving this statement to apply in a specific case? Has this situation been tested in law previously?


Thanks for any advice.


Luckyspal

The statement is correct. However, even if you can demonstrate that the criteria was mistakenly applied, the company is likely to argue that you would have been made redundant in any event. If accepted by the tribunal, this would seriously reduce the value of your claim. Perhaps to a couple of weeks wages.

In general, tribunal's do not want to consider management decisions. If you are arguing that you only got 2 out of 5 for 'computer skills', for example, and John Smith got 4 out of 5, and he's much worse at computers than you, the tribunal isn't going to be very interested.

You have a better claim if, say, a criteria scoring matrix was draw up by management, then completely ignore and management just dismissed who they wanted to dismiss.

Luckyspal

amyface wrote: »

I would believe the above is robust enough if the evidence backs up the latter - i.e. if things were carelessly and mistakenly applied. As they say Just setting up criteria doesn't mean fair selection if the people involved make a right horlicks of applying the facts - i imagine its like any system - poo in poo out!

So if they use criteria like say qualifications or attendance and then apply markings inconsistent to the facts supporting the judgement then I would hope there could potentially be the basis for considering an unfair dismissal case as they are not applying the process they initiated.

Its difficult to leap towards saying you necessarily could win a case as each case will be different and have different levels of ineptness underpinning the marking process.

From what I have found so far it looks like basic errors were made in the application of the selection critreria. I can prove these in some cases and suggest other by implication. Thanks for the reassurance.

Luckyspal

Ewarwoowar2 wrote: »

The statement is correct. However, even if you can demonstrate that the criteria was mistakenly applied, the company is likely to argue that you would have been made redundant in any event. If accepted by the tribunal, this would seriously reduce the value of your claim. Perhaps to a couple of weeks wages.

In general, tribunal's do not want to consider management decisions. If you are arguing that you only got 2 out of 5 for 'computer skills', for example, and John Smith got 4 out of 5, and he's much worse at computers than you, the tribunal isn't going to be very interested.

You have a better claim if, say, a criteria scoring matrix was draw up by management, then completely ignore and management just dismissed who they wanted to dismiss.

Thanks, I think I was included in the selection pool due to the errors in applying the selection criteria. This will be my case. I was just hoping that there were some previous cases where I could quote precedence.

Ewarwoowar2

Luckyspal wrote: »

Thanks, I think I was included in the selection pool due to the errors in applying the selection criteria. This will be my case. I was just hoping that there were some previous cases where I could quote precedence.

Not sure if any of this will be useful:

The employer only has to show, with regard to its choice of pool, that it acted reasonably. In Alvis Vickers Ltd v Lloyd, the EAT held that a tribunal had been wrong to conclude that selecting a pool of one was outside the range of reasonable responses; the tribunal had fallen into the error of substituting its own view for that of the employer. For an example of where the tribunal was prepared to characterise the employer's choice of pool as unreasonable, see Hendy Banks City Print Ltd v Fairbrother and others UKEAT/0691/04.

In order to be reasonable, the criteria must, as far as possible, be both objective and capable of independent verification. This means that the criteria should be measurable, rather than just being based on someone's personal opinion (see Williams v Compair Maxam).

In Thomas & Betts Manufacturing Ltd [1980] IRLR 255, it was unfair to dismiss a fitter, while retaining another employee to be a packer, without considering whether the fitter could have been transferred to the packing work. Put another way, failing to put the packer in the pool along with the fitter rendered the dismissal unfair. Betts is an early example of where not considering "bumping" was unfair.

If you give me a bit more detail about the errors, I might be able to help you more.