Pinewood Repro Ltd (trading as County Print) v Page

Fair redundancy consultation requires an employee to receive adequate information and a proper opportunity to understand and challenge the reasons for selection. Where selection depends on subjective scoring, this may require an explanation of how particular scores were reached. The requirement is fact-sensitive. Further explanation may be unnecessary for objectively verifiable matters such as attendance or productivity, but may be essential where the employee challenges subjective assessments. Tribunals must assess whether the process was fair and even-handed, without conducting a microscopic review of the employer’s scoring. A Polkey deduction requires evidence enabling the tribunal to assess whether dismissal would or might have occurred in any event; speculation based solely on the number of candidates is insufficient.

The appellant employer dismissed the respondent, an estimator with 23 years’ service, for redundancy after selecting him from a pool of three employees using a scoring matrix. The Manchester Employment Tribunal dismissed the claim of automatic unfair dismissal but found the redundancy dismissal unfair and found a failure to provide written terms and conditions.

The tribunal considered that the employer had not explained the respondent’s lower scores in subjective categories, particularly flexibility, and had therefore denied him a proper opportunity to challenge his selection. It made no Polkey deduction. The employer appealed, arguing that the tribunal had imposed an excessive consultation requirement, impermissibly reviewed the scoring, and failed to apply the correct approach to a possible deduction.

1. Appeal dismissed. The tribunal was entitled to find the redundancy dismissal unfair.
2. Fair consultation requires adequate information on which the employee can respond, a fair and proper opportunity to understand the matters under consultation, and genuine consideration of the employee’s views. In a scoring exercise, that may include sufficient information to challenge the scores. The question is fact-sensitive and depends on whether the employee was treated fairly and even-handedly.
3. The tribunal did not impose an inflexible rule that every score must always be explained. Explanation may be unnecessary where scores concern matters such as attendance, timekeeping, conduct or productivity. Here, however, the pool was small, the scores were close, the challenged matters were subjective, no reasons appeared on the scoring sheets, and the employer gave no meaningful response at either consultation or appeal.
4. The tribunal’s findings about the weaknesses in the assessors’ explanations were relevant to whether the employee had a proper opportunity to challenge the selection and did not amount to substituting its own view for that of the employer. If proper consultation had occurred and the employer had maintained its scores after considering the employee’s representations, the authorities cautioned against microscopic scrutiny of the scoring.
5. No Polkey deduction was required. The employer had produced no cogent evidence establishing what would or might have happened had a fair procedure been followed. The suggested one-in-three deduction was unsupported speculation, not evidence.

• Employment Appeal Tribunal: dismissed the employer’s appeal from the Manchester Employment Tribunal’s decision.
• Manchester Employment Tribunal: dismissed the automatic unfair dismissal claim, but found the redundancy dismissal unfair and found a failure to provide written terms and conditions.