East Lancashire Masonic Hall Co Ltd & Ors v Buckley

In a redundancy dismissal, the Employment Tribunal may find that the selection procedure fell outside the band of reasonable responses where its deficiencies cumulatively make the process unfair. Relevant deficiencies may include failing to define the retained role, omitting a material skill from the criteria, failing to consult before initial scoring, and allowing scoring to be influenced by untested complaints or irrelevant personal considerations.

A serious finding that an employer devised a procedure in bad faith requires clear and particularised reasons. An unsupported finding of a sham may be set aside without affecting a separate, sustainable conclusion that the dismissal was unfair. A Polkey reduction may reflect an assessed 50% chance of a fair dismissal where two candidates had differing strengths and weaknesses.

The employer appealed against an Employment Tribunal majority decision that it had unfairly dismissed its long-serving Marketing Executive/Assistant Manager for redundancy. The Tribunal accepted that redundancy was a potentially fair reason, but the lay-member majority found the selection process unfair and reduced compensation by 50% under the Polkey principle.

The employer challenged the majority's application of the band of reasonable responses, its reasons and findings of perversity, including a finding that the criteria had been devised to retain the other candidate, and the Polkey deduction. The Employment Judge had dissented below, considering the process reasonable in the unusual circumstances. The central issue was whether the majority's conclusion on procedural unfairness and compensation disclosed an error of law.

1. Appeal dismissed, subject to setting aside the finding of a sham. The Employment Appeal Tribunal upheld the Employment Tribunal majority's conclusion that the redundancy dismissal was unfair. Its conclusion was a permissible application of the band of reasonable responses and was not perverse.

2. The majority had identified several supported defects: no job description for the retained managerial role; omission of marketing despite an ongoing and longer-term need for that function; no consultation with either candidate before the criteria were adopted and initially scored; and scoring affected by matters not put to the claimant, an inadequate assessment of IT skills, and personal considerations. Although the Board could reasonably conduct the assessment in the absence of a better assessor, the majority could conclude that the defects cumulatively took the procedure outside the range of reasonable procedures.

3. A split Employment Tribunal decision does not itself suggest substitution of the tribunal's view for that of the employer. Here, both majority and minority had applied the correct test. Their differing conclusions were reasonably open on the facts.

4. The finding that the employer deliberately designed the criteria to retain the other candidate and dismiss the claimant could not stand. It was a serious bad-faith finding, yet the Tribunal gave no reasoning capable of supporting it. That error did not undermine the independent and cumulative findings which sustained unfair dismissal.

5. The 50% Polkey reduction was upheld. The Tribunal was entitled to assess the position as an equal chance of a fair dismissal had a fair process been used, since one post remained and the two candidates had different strengths and weaknesses.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the finding of unfair dismissal and the 50% Polkey reduction, while holding that the Tribunal's bad-faith finding could not stand.
• Employment Tribunal: by a lay-member majority, found the redundancy dismissal unfair and reduced compensation by 50% under the Polkey principle. The Employment Judge dissented on fairness.