Camelot Group Plc v Hogg

In a redundancy dismissal, fairness under section 98(4) requires an assessment of the whole process. A procedural omission does not automatically make the dismissal unfair. Tribunals should avoid minute scrutiny of selection scoring where the employer has adopted a generally fair system and applied it without conduct impairing its fairness.

An employer is not generally obliged to disclose every document gathered during redundancy consultation. The need to provide further information depends on a specific and relevant challenge by the employee. A tribunal may not decide an unfair-dismissal claim on an unpleaded basis closely allied to an excluded challenge. Where the evidence admits only the conclusion that dismissal would have occurred despite the alleged procedural defect, a 100% Polkey reduction is required.

The employer reorganised its sales force following a requirement to reduce costs. The employee, a retail development executive, competed for a new role in a redundancy-selection process and ranked sixth of seven candidates. She was dismissed for redundancy after failing to secure a post.

The Employment Tribunal found the dismissal procedurally unfair. It held that, after requesting interview notes, the employee had been deprived of an opportunity to challenge her assessment because the employer decided to dismiss before the final consultation meeting. It made no Polkey deduction.

The employer appealed, contending that the Tribunal had failed to assess the process as a whole, decided an unpleaded issue, and erred in its approach to causation and compensation.

1. Appeal allowed. The Employment Appeal Tribunal substituted a finding that the employee had been fairly dismissed.

2. The Tribunal erred by inferring from the employee’s unspecific request for interview notes that she had notified the employer of a challenge to her scores or assessment. She knew her overall score, the component scores and their weightings. She never identified an alleged scoring error or said that any score should have been higher. The employer was therefore under no duty to provide the interview notes, although it did provide them.

3. A request for information in a redundancy process must be considered in context. An employer may be well advised to answer a specific request for relevant information, but it need not comply with every unexplained request for documents. The Tribunal wrongly treated the employee’s request as sufficient to make dismissal unfair if the request had not been met before the dismissal decision.

4. The Tribunal also failed to assess the overall fairness of the process under section 98(4) of the Employment Rights Act 1996. The employee received the notes before the dismissal meeting and had repeated opportunities, including through her written appeal, to raise a complaint about them or her scores. The written appeal requirement did not prevent her from articulating her concerns. The process was thorough and careful overall.

5. The Tribunal had no jurisdiction to determine the claim on this basis. The alleged unfairness was closely allied to the employee’s excluded scoring challenge and was not part of the complaint pleaded in the ET1.

6. Further, if procedural unfairness had existed, the evidence compelled a 100% Polkey deduction. Having received the notes, the employee never identified an error despite several opportunities. The only proper conclusion was that she could not have established an error capable of affecting the dismissal.

• Employment Appeal Tribunal: allowed the employer’s appeal and substituted a finding of fair dismissal: [2011] UKEAT 0019_10_1310.
• Employment Tribunal, Glasgow: judgment registered on 3 March 2010 found the employee unfairly dismissed and awarded compensation of £15,051.