It’s no real surprise that with the bleak economic outlook, redundancies are still keeping HR professionals busy. The Equality and Human Rights Commission together with ACAS has recently produced a guide on redundancy in cases of pregnancy and maternity. ACAS highlights that it receives 15,000 calls a year on such issues. Meanwhile, a couple of recent EAT cases have provided some reassurance for employers going through redundancy processes.
The first case is a firm reminder that it is not for an Employment Tribunal to go through the scores and reassess employees against them, unless there is clear evidence of an employer’s improper motives. In this case the ET was found to have fallen into the trap of substituting its own view in place of the employer’s view about whether it was reasonable to make an employee redundant.
The ET had gone through the relevant scores given, and compared them with evidence of the employee’s appraisals and other employees’ scores. It had concluded that these scores were “clearly lower than they should have been”. However the EAT found that the ET’s approach was wrong. The ET had already concluded that there was a genuine redundancy, and that the procedure adopted was reasonable and fair.
It had rejected the employee’s argument that he was selected for redundancy through dislike of his part time status. In those circumstances, with no overt signs of unfairness, the ET was not entitled to embark on a detailed critique of the scores given. Nor were subjective selection criteria necessarily fatal to a fair selection process. The EAT referred to a recent case in which it was noted that most selection criteria are a matter of judgment, and that in some cases even subjective criteria can be assessed in an objective and dispassionate way.
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In the second case the EAT confirmed that there does not need to be an actual reduction in headcount for there to be a redundancy situation. This is likely to be where a downturn in work has necessitated a change in terms and conditions, such as reduced hours, rather than a straightforward redundancy dismissal. Looking at whether there is in fact a reduced requirement for full-time equivalents, even though the same number of employees is actually retained, can be indicative of a redundancy situation. Some confusion in this area had been caused by a previous decision of the EAT.
These cases are helpful for employers, although bear in mind that:
* an employee must still be able to know and challenge his own scores during the consultation process
* discrepancies between appraisals and the scores given are likely to be a prime source of challenge
* a reduction in hours will not always amount to a redundancy situation – it will depend on circumstances.
