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Employment Law

Legal guidance - compliance - software

13 SEP 2013

Mental Health Care (UK) Ltd v Biluan and Another UKEAT/0248/12; (2013) EMPLR 030

28 February 2013

Employment Appeal Tribunal (EAT)

Underhill J, Mr B Beynon and Mr S Yeboah

Past case law has suggested that selection criteria for redundancy should be objective not subjective (ie they should not rely on the judgment of individual managers). But this case shows that a doctrinaire, ‘blind faith in process' avoidance of subjectivity can lead employers to ‘lose touch with common sense and fairness' and so be unfair.

The employers, intending to ensure fair, objective redundancy selection criteria, required staff to undertake competency tests conducted by the HR team who had no knowledge of working with those individuals. The managers were surprised by some of the results and considered that some ‘very good workers' had been selected for redundancy. But because the process was thought to have been ‘robust', those employees were nevertheless made redundant.

A tribunal, upheld by the EAT, concluded the dismissals were unfair. The employer had adopted an ‘elaborate and HR driven method' which deprived it of the benefit of input from managers and others who knew the staff in question. The over-elaborateness made the process difficult to apply consistently. Subjectivity in the selection process does not necessarily make a redundancy procedurally unfair.

The method and content of the assessments were also unfair as some of the assessments tended to favour outgoing personalities.

The EAT added that:

(1)        consultation about the selection criteria is not necessary if there is no collective consultation

(2)        no consultation was needed over the closure which led to the redundancies

(3)        the employer's failure to disclose individual scores did not make the process unfair

(4)          holding general meetings of all staff and giving the opportunity to ask questions on the spot or subsequently, coupled with the offer of individual discussions about their options amounted to

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