Carclo Technical Plastics Ltd v Jeyanthikumar

For a redundancy dismissal subject to the statutory procedure, the employee must receive sufficient information before the Step 2 meeting to enable a considered response. Providing the selection scores at the meeting itself is insufficient. A meeting cannot satisfy Step 2 where the employer has already decided to dismiss and would not have been influenced by anything the employee said.

An employment tribunal may scrutinise whether a redundancy selection procedure was fair and reasonable without substituting its own judgment for that of the employer. Identifying a fundamental error in applying the procedure, such as double-counting one incident under separate criteria, is permissible. Where the fairness of the process makes the outcome too speculative, the tribunal may decline to make a Polkey deduction.

The employee was selected for redundancy from a pool of assembly workers after the employer applied a points matrix. She was given her scores at a meeting on 27 March 2009 and dismissed at a further meeting on 3 April. The dismissal letter had been prepared before the latter meeting, and the manager accepted that nothing the employee said would have prevented dismissal.

The Employment Tribunal held that the statutory procedure had not been completed and that the dismissal was automatically unfair under section 98A of the Employment Rights Act 1996. It also held that the selection procedure was unfair under section 98(4). The central issues were whether either meeting satisfied Step 2 and whether the tribunal had impermissibly substituted its judgment for the employer’s in criticising the selection process.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the statutory procedure had not been completed and that the dismissal was automatically unfair.
2. Following Alexander v Brigden Enterprises Ltd, the information required for a meaningful Step 2 meeting had to be supplied in advance. In a matrix-based redundancy exercise, this included the employee’s own assessment and scores. Giving the scores during the meeting did not provide a reasonable opportunity to consider and respond to them.
3. The 3 April meeting also failed to satisfy Step 2. Although a meeting after an announcement that a post was redundant may sometimes remain effective where the final dismissal decision has not been made and alternatives are still genuinely under consideration, that was not this case. The decision had already been taken, the dismissal letter had been prepared, and the manager accepted that nothing said at the meeting could alter the result.
4. The tribunal applied the correct question under section 98(4), namely whether the selection procedure was fair and reasonable. It was entitled to criticise the procedure itself and, independently, its application. Double-counting the same incident under quality and disciplinary criteria, causing an eight-point reduction and affecting selection, was a fundamental and obvious error. This did not amount to substituting the tribunal’s judgment for the employer’s.
5. On the Polkey issue, the tribunal was entitled to find that reconstructing the likely result of a fair process was too uncertain to permit a sensible prediction. No deduction was therefore required.

• Employment Appeal Tribunal: dismissed the employer’s appeal against the Employment Tribunal’s findings of automatic unfair dismissal under section 98A and ordinary unfair dismissal under section 98(4). The judgment of the Employment Tribunal was upheld.
• Employment Tribunal: held that the statutory procedure had not been completed and that the selection procedure was unfair. No citation for that decision is stated in the judgment.