Flintshire County Council & Ors v Moore (Deceased) & Anor

In redundancy selection, an Employment Tribunal must apply the range of reasonable responses test. It must not substitute its own view about the appropriate pool, criteria, weighting or scoring. However, the employer must conduct genuine consultation, allowing sufficient time for meaningful consideration of selection criteria and their practical effects.

Criteria fall outside the reasonable range where they automatically prejudice employees because their work is absent from a school development plan, without fairly measuring their contribution or competence. A Polkey assessment may be refused where the outcome is too speculative, but the Tribunal should not exclude such an assessment where a sensible prediction remains possible.

Teachers employed at a small primary school were selected for redundancy after a substantial budget deficit arose. The Employment Tribunal found that the redundancy situation was genuine but that the consultation period was inadequate, the selection pool improperly excluded one teacher, and the criteria unfairly favoured teachers whose responsibilities appeared in the school development plan.

The school authorities appealed, arguing that the Tribunal had substituted its own judgment for that of the employer. They also challenged the Tribunal’s conclusion that no Polkey deduction could be assessed. The central issues were whether the selection process fell outside the range of reasonable responses and whether the compensation consequences could be assessed.

1. Appeal and disposition. The appeal was dismissed, subject to reversal of the finding that no Polkey deduction could be considered in Mrs Lund’s case. That issue was remitted to the remedy hearing.
2. Applicable approach. The principles in Williams and Ors v Compair Maxam Ltd [1982] ICR 156 and Polkey v A E Dayton Services Limited [1988] ICR 142 require warning, genuine consultation, fair selection criteria, consideration of representations and reasonable efforts to avoid or minimise redundancy. The employer retains discretion over the pool and criteria, but each aspect remains subject to the range of reasonable responses test.
3. Consultation. Six days to comment on the criteria was wholly insufficient. The Tribunal was entitled to find that the process was consultation in form rather than substance, because the parties lacked a real opportunity to identify and address the criteria’s practical consequences.
4. Pool and criteria. The exclusion of the teacher occupying the separately funded special-needs post could reasonably be found unjustified where another suitably qualified teacher might have been considered for that post. The school development-plan criterion was also fundamentally flawed. It automatically disadvantaged teachers whose subject areas did not require improvement, without providing a fair measure of past contribution or competence. This created no reasonably level playing field.
5. Polkey assessment. The Tribunal could properly conclude that Mrs Moore’s outcome was too speculative to assess. In Mrs Lund’s case, however, her position at the bottom of the scores and the absence of the special-needs complication meant that a possible deduction should remain open for consideration at the remedy hearing. The principles stated in Software 2000 Ltd v Andrews and Ors [2007] IRLR 568 should be applied without undue reluctance to engage in a sensible prediction.

• Employment Tribunal: Found the dismissals unfair because of inadequate consultation, the composition of the selection pool and unfair selection criteria. It made no Polkey deduction.
• Employment Appeal Tribunal: Upheld the unfair-dismissal findings, but remitted the question of a Polkey deduction for Mrs Lund.