Peninsula Business Services Ltd v Rees & Ors

For the statutory dismissal procedure, an employer must provide information sufficient for the employee to understand the basis of the proposed redundancy and to have a reasonable opportunity to challenge its accuracy or completeness. In a scored selection exercise, this ordinarily requires disclosure of the selection criteria and the employee’s own assessment in time for a meaningful response.

A defect in one of the statutory steps cannot be cured by a later appeal. Section 98A(2) applies only to ordinary unfair dismissal where the failure concerns a procedure other than non-compliance with a statutory step. For ordinary unfair dismissal, the tribunal assesses the dismissal process as a whole, including any appeal.

The employer appealed against an Employment Tribunal’s decision that three employees had been automatically and ordinarily unfairly dismissed in a redundancy exercise. The Tribunal found that the employer had complied with Steps 1 and 3 of the statutory dismissal procedure but had failed to comply with Step 2 because the employees were not given sufficient information about their selection scores and the scoring process before they had to respond.

The Tribunal also found that the appeal process did not cure the procedural defects and that the employer had not shown that the employees would have been dismissed at the same time in any event. The central issues were whether Step 2 had been properly completed, whether the appeal cured the defects, and whether section 98A(2) applied.

1. Appeal dismissed. The Employment Tribunal was entitled to find that Step 2 of the standard dismissal procedure had not been completed.
2. Step 2 requires the employer to explain the basis for the proposed dismissal and to give the employee a reasonable opportunity to consider and respond. In a redundancy matrix exercise, the employee must ordinarily receive the selection criteria and the employee’s own assessment. The information must be sufficient to permit an informed challenge to the criteria, their application and any factual errors.
3. The assessment of what is a reasonable opportunity is fact-sensitive, but the statutory requirements require a consistent construction. The Tribunal had correctly applied Alexander v Bridgen Enterprises Limited and Davies v Farnborough College of Technology.
4. A failure to comply with a statutory step cannot be cured by an appeal. Section 98A(2) does not convert an automatically unfair dismissal into a fair dismissal. It applies where there is ordinary procedural unfairness outside non-compliance with one of the statutory steps.
5. For ordinary unfair dismissal, the whole dismissal process, including the appeal, must be considered. An appeal may cure earlier ordinary unfairness, but the Tribunal was entitled to find that it had not done so here.
6. As an alternative, the Tribunal had correctly placed on the employer the burden of showing, on the balance of probabilities, that each employee would have been dismissed at the same time even if a fair procedure had been followed. It was entitled to conclude that this had not been proved. Any separate Polkey assessment remained a matter for remedy.

• Employment Appeal Tribunal: The appeal against the findings of automatic and ordinary unfair dismissal was dismissed.
• Employment Tribunal: The Tribunal found that the employer had complied with Steps 1 and 3 but not Step 2 of the statutory dismissal procedure. It found the dismissals automatically and ordinarily unfair and held that the appeal had not cured the defects.
• Earlier proceedings: An earlier Employment Tribunal judgment had been set aside by the EAT for apparent bias.