Can a decision to dismiss someone by way of redundancy be considered unfair, on the basis that the decision was taken before the interview notes the claimant requested were provided?
No, held the EAT in the recent case of Camelot Group plc v Hogg.
As part of a company restructuring, H had finished sixth out of seven candidates in a scoring exercise. On being given her scores she was informed that she had not secured a position in the new structure. Not accepting that her scores reflected her abilities, she asked to see her interview notes. She received these between 1 June and a meeting on 5 June, when she was told she would be dismissed and made redundant on 12 June 2009. H did not challenge the scores during this time. H brought a claim for unfair dismissal on the basis that some employees had been excluded from the redundancy process and not all those who sought voluntary redundancy were made redundant. However, she did not claim that she had been unable to challenge her scores in the assessment process.
The tribunal refused H permission to amend her claim to challenge her scores in the assessment process, but did find her dismissal unfair. On the basis of the EAT’s decision in John Brown Engineering Ltd v Brown, it considered that if an employee gave reasonable notice that they wished to challenge the application of the assessment criteria, they must be given a reasonable opportunity do so. As a consequence of H having given reasonable notice that she disagreed with the way the scoring criteria had been applied, she had reserved her right to challenge it and CG Ltd had deprived H of the right to challenge the scores by deciding to dismiss H before the final meeting. CG Ltd appealed.
Allowing the appeal, the EAT held that the tribunal had wrongly decided the case on a basis that had not been set out in the ET1. Further it found that the Brown decision did not require an employee to see their interview notes (or any other documents) prior to any decision to dismiss when they had made an unrefined challenge to the way the assessment criteria was applied. An employer who had received a more specific request would be advised to comply. H had made no such request and consequently, CG Ltd was under no duty to provide H with a copy of her interview notes. As H knew and did not challenge her overall score, nor ask for any further break-down, the tribunal could not conclude that she had reserved the right to challenge her scores. The Tribunal had also failed to address the question of whether there had been a fair redundancy process. Subsequently, there was no basis on which the Tribunal could have concluded that the decision to dismiss H was not fair.
The tribunal also failed to consider that the Claimant did not complain about the interview notes and that she therefore had no basis on which to challenge the scoring. In the circumstances, a Polkey(1) deduction of 100 per cent was deemed appropriate.
(1) Known as a Polkey deduction after the House of Lords decision in Polkey v AE Dayton Services Ltd ,this is a reduction in the compensatory award made to an employee in a successful claim for unfair dismissal to reflect the likelihood that there would have been a fair dismissal in any event.