Today we are moving office. And the best of luck to us ☺. It will be lovely to have a bit more space, even if we may have to overcome a few teething problems. So bear with us, while we unpack the trainees, file the filing cabinets, debate about the placement of plants and pictures and try to find what we’ve done with the teabags!
In the circumstances, it seemed fitting to write a blog about departure!
Under the Employment Rights Act 1996 an employer who is thinking about making someone redundant must make its decision to dismiss based on a fair and adequate procedure. In order to make the decision the procedure to be followed will generally include the following steps.
- Provide the business rationale for the dismissal.
- Idenity the correct redundancy selection pool.
- Draw up objective, fair and relevant selection criteria.
- Using evidence and factual examples, apply the selection criteria properly and fairly.
- Consult fully with the affected employees.
- Explore whether there are any suitable alternative vacancies.
- For employees who have been made redundant, offer the right of appeal.
- The decision to dismiss must have been within the reasonable range of responses.
- The decision to dismiss must be fair, justifiable and proportionate in the circumstances
If an employer does not satisfy these criteria an employee has a good chance in succeeding in a claim for unfair dismissal.
In a recent case which dealt with the fairness of a redundancy dismissal, the court considered whether the employer had used fair criteria in assessing the affected staff. The dismissal was ultimately found to be unfair, mainly because the criteria used to assess the employees’ capabilities was based on a recruitment exercise. It did not consider their past experience.
In Mental Health Care (UK) Ltd v Biluan & Anor, the facts involved a redundancy exercise where the redundancy selection criteria consisted of a competency assessment and discipline and absence records. In most instances the competency score was the deciding factor. The manager who was undertaking the process expressed surprise at the results as several employees selected for redundancy were good employees. The redundant employees argued that the selection process was unfair and therefore the ensuing dismissal was by necessity unfair.
The employment tribunal agreed because the employees’ capability had been assessed mainly on the competency assessments. No account had been taken of earlier performance. On appeal the EAT recognised that the employer had taken a careful and structured approach but criticised the 'elaborate and HR driven method' which had the effect of limiting input from managers and others who knew the staff in question. The Court said that whilst it is desirable to be objective and avoid bias, this goal can come at ‘too high a price’. It added that it is incorrect to fear that a tribunal will find a procedure unfair only because there is an ‘element of 'subjectivity’ involved. The appeal was dismissed.
It is always best to be as objective as possible, but the application of common-sense is no bad thing. We have common-sense in scads; if you need help with redundancy or any other HR process, get in touch.
If you want help sorting out workplace employment issues, give us a call.
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