Dabson v David Cover & Sons Ltd

In a redundancy dismissal, the tribunal must assess the overall fairness of the employer’s procedure under Employment Rights Act 1996, section 98(4). It must consider whether the selection criteria were fair and applied reasonably, but should not rescore employees or subject subjective assessments to microscopic scrutiny. Marking should be investigated only where there is good faith concern, actual bias, demonstrable inaccuracy or obvious mistake. A breach of collective consultation duties under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 does not automatically make the dismissal unfair. The significance of any breach depends on its effect on the fairness of the dismissal, including any prejudice and the opportunity given to the employee to contest the proposed selection.

The claimant, a long-serving transport manager, was selected for redundancy after the respondent reorganised its transport operations. A selection exercise assessed candidates for different posts. The claimant challenged the scoring, alleging inconsistency and improper marking by a manager with whom he had experienced friction.

The respondent consulted an employee representative after affected employees failed to nominate representatives, and held two further meetings with the claimant before the dismissal was finalised. The Employment Tribunal dismissed the unfair dismissal claim, finding that the redundancy was genuine, the consultation adequate and the selection fair. The claimant appealed, challenging the treatment of the section 188 consultation issue, the scoring exercise and the adequacy of the Tribunal’s reasons.

1. Appeal dismissed. The Employment Tribunal had directed itself correctly and was entitled to dismiss the claim.
2. On an appeal confined to errors of law, the EAT must respect the specialist tribunal’s factual findings. It should not use a fine toothcomb to identify artificial defects in the reasons or treat disagreement with factual assessment as an error of law. The reasons were sufficient to explain why the respondent succeeded and the claimant failed.
3. Once redundancy is established as the reason for dismissal, it is a potentially fair reason under section 98(2)(c) of the Employment Rights Act 1996. The tribunal must then decide under section 98(4) whether dismissal fell within the range of reasonable responses. It must not substitute its own view for that of the employer.
4. The proper question in redundancy selection cases is whether the selection method was fair in general terms and applied reasonably to the individual. Subjective scores should not be examined in detail unless there is actual bias, absence of good faith, demonstrable inaccuracy or obvious error. A tribunal may correct objectively wrong figures, but may not substitute its own assessment of a subjective mark.
5. The respondent’s failure, if established, to comply with section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 would not itself make the dismissal unfair. The tribunal had to assess the overall fairness of the procedure, including whether the breach caused prejudice. The Tribunal was entitled to find that the preliminary matters had been discussed with the employee representative and that the later individual meetings occurred while the dismissal decision remained provisional.
6. Different posts may legitimately require different skill mixes. The Tribunal was entitled to find no inconsistency between the claimant’s scores for planning routes in the senior post and assisting with route planning in the junior post.

• Employment Appeal Tribunal: Appeal from the decision of the Southampton Employment Tribunal, sent to the parties on 20 April 2010, dismissed.
• Employment Tribunal: Claim for unfair dismissal dismissed.