DLA Piper UK Management Services Ltd v Codyre

In an unfair dismissal claim arising from redundancy, an employment tribunal must assess whether the employer’s selection process fell within the range of reasonable responses without substituting its own assessment. Where dismissal is procedurally unfair, the tribunal must nevertheless assess the chances that the employee would have been dismissed following a fair procedure. It need not reconstruct a final selection score, provided it can make a sensible prediction from the evidence. A tribunal must also determine expressly, with reasons, any properly raised mitigation issue. Failure to do so renders the reasons inadequate.

Ms Codyre was dismissed as part of a redundancy exercise affecting two of six legal secretaries. The Employment Tribunal found redundancy to be the reason for dismissal and accepted the consultation process, selection pool and criteria, but concluded that the employer had applied the scoring criteria unfairly in relation to work performance and skills and competencies. It upheld the unfair dismissal complaint and awarded compensation.

The Tribunal declined to make a Polkey deduction because it considered that it could not re-score the candidates. It also failed expressly to determine the employer’s mitigation argument. The employer appealed on fairness, Polkey and mitigation grounds.

1. Fairness. The appeal against the finding of unfair dismissal was dismissed. The Employment Tribunal had not substituted its own view for that of the employer. It had scrutinised the fairness of applying otherwise unexceptionable selection criteria and identified adequate reasons for finding that the scoring was unfair. The conclusion was not perverse.
2. Polkey deduction. The appeal succeeded on this issue. The Tribunal took too narrow a view of its role by treating the inability to re-score the six candidates as preventing any assessment. It was not required to produce a final hypothetical score. It had to determine, on the evidence, the chances that the claimant would have retained her employment if a fair procedure had been followed. The exercise could be necessarily speculative without being incapable of sensible prediction.
3. The Employment Appeal Tribunal declined to conduct the exercise itself. The issue was remitted to the same Employment Tribunal, if practicable, for reconsideration on the existing evidence and submissions.
4. Mitigation. The Tribunal had failed to determine an argument that the claimant had not mitigated her loss. An express ruling with reasons was required. The reasons were therefore not Meek-compliant, and the mitigation issue was also remitted.
5. The appeal succeeded in part. The remedy award was not set aside, but could be varied after reconsideration of the Polkey and mitigation issues.

• Employment Tribunal: The Tribunal upheld the complaint of unfair dismissal and awarded £29,093.42. It declined to make a Polkey deduction and did not expressly determine mitigation of loss.
• Employment Appeal Tribunal: The finding of unfair dismissal was upheld. The Polkey and mitigation issues were remitted to the same Tribunal, if practicable.