Watkins v Crouch (t/a Temple Bird Solicitors)

In a redundancy selection exercise, an employment tribunal must assess both whether the selection criteria are fair and whether the employer applied them fairly. It must meaningfully address a complaint that the employer departed from agreed criteria or used undisclosed additional factors to retain a particular employee. The tribunal must not substitute its own view of who should have been selected, but it must scrutinise whether the process can withstand close examination. Criteria based on broad business requirements may be insufficiently objective and, if relevant, should ordinarily be reflected in criteria applied consistently to the workforce.

The claimant was employed as a conveyancing secretary by a sole-practitioner solicitor. She was dismissed for redundancy after a downturn in conveyancing work. The employer used a pool of administrative support staff and notified employees of five selection criteria, including fee-earning ability, client-facing skills, procedural knowledge, availability for suitable work and adaptability.

The claimant was one of the lowest scorers. Another employee, who scored lower, was retained because the employer considered her too valuable to lose. The Employment Tribunal dismissed the unfair dismissal claim, finding that the criteria had been fairly and objectively applied. The appeal concerned whether the tribunal had properly addressed the alleged use of undisclosed criteria and exceptional treatment.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and the unfair dismissal claim was remitted for rehearing by a differently constituted tribunal.
2. The tribunal correctly stated that it must not substitute its own view for that of the employer. Its task was to consider, in broad terms, whether the agreed criteria were fair and whether they had been fairly applied. Detailed scrutiny designed merely to identify a flaw in individual scores was unnecessary.
3. That approach did not answer the claimant’s case. On the tribunal’s own findings, an employee with a lower score had been retained because factors other than the notified criteria and resulting scores were taken into account. The tribunal failed to analyse whether that was fair, whether the employer had changed the criteria when it became apparent that the employee would otherwise be selected, or whether the employer had concealed the true position.
4. The tribunal also failed to address whether employees had been informed from the outset that scoring would not be decisive and that business requirements and employee skills would be considered. It did not determine whether those additional factors were sufficiently objective. These were material omissions, and the decision could not stand in its existing form.
5. The Employment Appeal Tribunal could not substitute a finding of unfair dismissal because the factual findings were incomplete and the result was not one which no reasonable tribunal could have reached. It observed, however, that a highly subjective criterion based on the overall requirements of the business might not satisfy the need for sufficiently objective selection criteria. If such a factor was to be used, it might need to be incorporated into criteria applicable to all employees.
6. The case was too incomplete for remission to the original tribunal. It was therefore remitted for a complete rehearing by a differently constituted tribunal.

• Employment Appeal Tribunal: allowed the appeal, set aside the Employment Tribunal’s dismissal of the unfair dismissal claim, and remitted the claim for rehearing by a differently constituted tribunal.