Canning v National Institute for Health and Care Excellence

In a redundancy dismissal, the controlling question is whether the employer acted reasonably in all the circumstances under section 98(4) of the Employment Rights Act 1996. The guidance in Williams identifies standards of fair industrial practice. It does not impose immutable legal requirements.

A selection interview may contain subjective assessment without being unfair. The tribunal must evaluate the procedure as a whole, including safeguards against arbitrary assessment. An appellate court will not interfere where that evaluative conclusion is supportable and not perverse.

In a discrimination claim, an inference arising from the facts may be rebutted by a cogent, non-discriminatory explanation supported by the tribunal’s findings of primary fact.

The claimant, a Senior Technical Assistant employed by NICE, was in a redundancy pool of nine employees competing for six posts after a reorganisation. NICE selected employees through a competitive interview conducted and independently scored by a five-member panel. The claimant received the lowest score from every panel member and was dismissed.

The Employment Tribunal at Central London dismissed her claims for unfair dismissal, sex discrimination and age discrimination in a judgment sent on 16 February 2018. It found that, despite shortcomings and subjective elements in the interview procedure, the process included sufficient checks and balances and was fair overall. It also found a non-discriminatory explanation for the claimant’s selection.

The claimant appealed, principally contending that the redundancy-selection criteria lacked the objectivity required by authority and that the Tribunal had erred on age discrimination.

1. Appeal dismissed. The Employment Tribunal made no error of law in rejecting the claims of unfair dismissal, sex discrimination and age discrimination.

2. On unfair dismissal, the essential statutory question was whether NICE had acted reasonably in all the circumstances under section 98(4) of the Employment Rights Act 1996. The guidelines in Williams & Ors v Compair Maxam Ltd [1982] IRLR 83 were standards of behaviour, not inflexible legal rules. The claimant could not pursue a consultation challenge that she had not advanced below.

3. The Tribunal had considered the subjective features of the interview process in detail. Subjectivity was not itself fatal. It was entitled to take account of the safeguards: five suitable and experienced panellists independently marked each candidate, and their rankings were combined. The Tribunal also rejected the allegations that the panel chair had acted with bias or improperly influenced the process. Although a different procedure might have been adopted, its conclusion that the dismissal fell within the range of reasonable responses was supportable, adequately reasoned and not perverse.

4. On sex discrimination, the Tribunal was entitled to find no facts from which an inference of discrimination could be drawn. On age discrimination, it assumed in the claimant’s favour that the first stage of the two-stage approach was met. It was then entitled to find that NICE had rebutted any inference: the competitive interview was communicated to the pool, candidates were offered assistance, the panel assessed only interview answers, and the Tribunal found that the claimant’s answers were poor. Those findings of primary fact defeated the challenge to the explanation and established that age played no part in the decision.

• Employment Appeal Tribunal: appeal dismissed in [2019] UKEAT 0241_18_0603.
• Employment Tribunal (Central London): claims for unfair dismissal, sex discrimination and age discrimination dismissed; judgment sent on 16 February 2018.