Charles Scott And Partners Consulting Engineers Ltd v Hamilton

In a redundancy dismissal, fairness is assessed under section 98(4) of the Employment Rights Act 1996. An Employment Tribunal must not substitute its own preferred redundancy pool, scoring criteria or weighting for those adopted by an employer acting reasonably. Selection criteria may involve judgment and need not all be wholly objective.

Lack of prior consultation does not automatically make a dismissal unfair. The Tribunal must assess the whole circumstances, including later meetings and what would probably have occurred after proper consultation. An appeal need not always be heard by different individuals. If procedural unfairness is found, the Tribunal must consider any Polkey reduction and explain its compensation assessment.

The employer, a small consulting engineering business, dismissed the claimant for redundancy after selecting one of three associate structural engineers using a scoring matrix. The claimant was not consulted before the selection decision, but later meetings addressed his concerns. His appeal was considered by directors who had participated in the original decision.

The Employment Tribunal found the dismissal unfair on procedural and substantive grounds and awarded compensation. It criticised the redundancy pool, the criteria, the absence of prior consultation, the appeal process and the failure to consider alternative employment. The employer appealed, contending that the Tribunal had substituted its own view, misapplied the law and failed to address the likely outcome and compensation consequences of any procedural defect.

1. Appeal allowed. The Tribunal’s conclusion that the dismissal was substantively unfair could not stand. Its reasoning concerned procedural matters and did not explain why no reasonable employer could have decided to dismiss.
2. The Tribunal unlawfully substituted its own view of the redundancy process. The employer had genuinely selected a pool and applied criteria after collective discussion by the four directors. There was no rule that every criterion had to be objective, and criteria such as capability and performance commonly involve judgment. The Tribunal had scrutinised the scoring process too closely and relied on possible discrimination although no discrimination claim was made.
3. The absence of prior consultation required assessment in the context of all the facts. The later meetings were not early consultation, but they allowed the claimant to raise matters which were considered and answered. They were relevant both to fairness and to the question whether the claimant would have been dismissed in any event.
4. It was wrong to treat an independent appeal hearing as legally essential in every case. The question was whether the procedure, viewed in the circumstances of the particular employer and case, rendered the dismissal unfair. The Tribunal also had no evidential basis for assuming that an external adjudicator from a similar business could or should have been appointed.
5. The unchallenged evidence that there were no alternative vacancies was sufficient, in the circumstances, to discharge the employer’s evidential burden on alternative employment. The Tribunal’s criticism that further efforts should have been made was unsupported.
6. If the dismissal was procedurally unfair, the Tribunal had to consider the chance of dismissal following a fair procedure and make any appropriate Polkey reduction. It also had to explain why the claimed loss flowed from the dismissal and how the compensation was just and equitable under section 123(1) of the Employment Rights Act 1996.
7. The claim was remitted to a fresh Employment Tribunal for rehearing.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s judgment registered on 20 October 2010 was allowed. The claim was remitted to a fresh Employment Tribunal for rehearing.
• Employment Tribunal: Found the claimant unfairly dismissed and awarded £17,130.39 compensation.