Swinburne & Jackson LLP v Simpson (Redundancy : Fairness)

In a redundancy dismissal, selection criteria should, so far as practicable, be objectively capable of assessment. Some criteria may properly require personal judgment. Their use does not itself make a dismissal unfair.

The tribunal must decide whether the criteria were fair and fairly applied. It may examine scoring closely where the circumstances require it, including where the decision-maker cannot rationally explain subjective scores and there is relevant evidence of discriminatory treatment. This is not an impermissible reassessment of the employer’s marks. A tribunal must not substitute its own view where the employer has adopted and fairly administered a good selection system.

The claimant, a commercial-property solicitor, was selected from a pool of four solicitors for dismissal in a genuine redundancy situation. The managing partner devised a weighted matrix with eight selection criteria. The claimant, who was the longest-serving and most experienced solicitor in the pool, received the lowest score.

The Employment Tribunal held that the redundancy process and its application were unfair. It found that the matrix was structured to select the claimant and awarded compensation subject to a 20% Polkey reduction. It also upheld parts of her age-discrimination claim, although the employer withdrew its appeal on that issue.

The employer appealed only the finding of unfair dismissal. The central issue was whether the Tribunal had erred in its legal approach to subjective criteria, its scrutiny of scoring, and the adequacy of its reasons.

1. Appeal dismissed. The Employment Tribunal made no error of law in concluding that the redundancy dismissal was unfair.

2. The Tribunal correctly treated [1982] IRLR 83 as requiring selection criteria to be as objective as practicable, while allowing some subjectivity. Later Employment Appeal Tribunal decisions did not alter that established position. Criteria involving judgment are not invalid merely because reasonable opinions may differ about their application.

3. The Tribunal had not condemned the employer simply for using subjective criteria. Its material criticism was that the managing partner could not give a rational explanation for several scores. It was entitled to examine whether criteria described as flexibility, future potential, performance and timekeeping had been fairly applied.

4. The Tribunal had also not substituted its own scoring for that of the employer. Although a tribunal must not reassess a properly designed and fairly administered system, it must determine whether the system and its operation were fair. Close scrutiny was justified here by the claimant’s age-related discriminatory treatment by the decision-maker, the small pool, and the unexplained selection of its longest-serving and apparently most experienced solicitor.

5. The Tribunal’s concerns about the reliability of information used in applying criteria were relevant to fairness. Its observation about weighting had no consequential effect. Its reasons, read as a whole, sufficiently explained why the process was found to have been designed to select the claimant despite the genuine redundancy situation.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the Employment Tribunal’s finding of unfair dismissal.
• Employment Tribunal, Newcastle-upon-Tyne: in reasons promulgated on 31 July 2012, upheld the unfair-dismissal claim, upheld parts of the age-discrimination claim, dismissed the sex-discrimination claim, and applied a 20% reduction pursuant to Polkey.