The Employment Tribunal held that dismissals following a redundancy selection exercise had been unfair principally. The respondent (B) ran homes/hospitals for patients with mental health or learning disabilities. It was decided to incorporate all the nursing and support staff at the hospital into the pool for redundancy. B undertook a redundancy exercise in relation to all the nursing and staff at the hospital. As a result, 19 of a total staff of 58 people were made redundant. The assessment of the employees’ capabilities was based on a series of exercises designed for use in a recruitment context. The assessment focused on 3 main areas:

(1) a competency assessment;

(2) disciplinary record; and

(3) sickness absence record.

No consideration was given to the past performance of the employees. The assessment was marked out of a possible 100 points. The competency assessment comprised of three elements – a written assessment, an interview (involving five pre-set questions)and a verbal group assessment. The managers found the results of the assessment “surprising” but the process was not re-examined as it was deemed to have been “robust”." The two claimants (A) brought proceedings for Unfair Dismissals. The ET granted the appeal and B appealed this decision. The EAT dismissed the appeal. There were some flaws in the ET’s secondary reasons for ruling the dismissals were unfair but its primary reason was acceptable.

The ET considered that the team carrying out the assessments had no experience of working with the individuals. This was considered to be quite atypical of a redundancy selection and more reflective of a recruitment situation.

The court held that when, as was the case in this instance, competency is a criterion of the selection process, assessments of competence from managers who have worked with the employees undergoing assessment should be retrieved. It was held such managers are better equipped to judge their qualities. Where possible, employers should request managers to provide their view on the candidate or refer to previous appraisals. Those undertaking the assessment should be wary of the possibility of prejudice or subjectivity and take any necessary precautions to prevent this affecting the decision made. http://bit.ly/XU2s7v