Alexander v Brigden Enterprises Ltd

EAT: Elias J (President), Lord Davies of Coity and Mrs D M Palmer: 12 April 2006

The respondent employers, who were experiencing financial difficulties, held open meetings for their workforce asking for voluntary redundancies and warning that compulsory redundancies might be necessary. The employers had no formal procedures in place for dealing with the situation, and a selection exercise was devised, based on set criteria including skills and qualifications, with marks allocated according to standards ranging from below average to excellent. Letters were sent to a number of employees including the claimants informing them that their positions were at risk and inviting them to attend meetings at which they were told the criteria which were being applied but not how the assessment was to be made. At a subsequent meeting the claimants were informed that they had been selected for redundancy but were not given an opportunity to comment on the assessment of their performance. The claimants were dismissed, and an employment tribunal rejected their complaints of unfair dismissal, deciding that the dismissals were not automatically unfair under section 98A(1) of the Employment Rights Act 1996 for failure to follow the statutory procedure in Part 1 of Schedule 2 to the Employment Act 2002; that, despite failings in the way the assessments had been made, the dismissals were not unfair under section 98(4); and that, in any event, there was a 100% chance that the claimants would have been dismissed in that they were the least skilled of the workforce.

The claimants appealed.

The Employment Appeal Tribunal held:
(1) To achieve the purpose of the statutory procedures in Chapter 1 of Part 1 of Schedule 2 to the Employment Act 2002, the information to be provided by the employer had at least to be sufficient to enable the employee to give a considered and informed response to the proposed decision. In the case of redundancy dismissals, that required an explanation to be given both as to why the employer considered that there was a redundancy situation and why the particular employee was being selected, and when a matrix approach to selection was adopted, as in the present case, it was necessary for the employer to provide the employee not only with the basic selection criteria but also with the employee's own assessment, though it was not necessary to provide the assessments of other employees. Accordingly, as the claimants had not been given their assessments before the decision to dismiss was taken, the employers were in breach of the statutory procedure and the dismissals were automatically unfair under section 98A(1) of the Employment Rights Act 1996.

(2) The tribunal was entitled to conclude on the evidence that whatever detailed criteria had been adopted the employers would have been seeking to dismiss the weaker performers and that the claimants were the least skilled and least able and that, accordingly, there was 100% chance that the claimants would have been dismissed in any event, even if the proper procedures had been applied. No compensatory award was, therefore, payable.

The appeal was allowed.

Appearances: Nick Toms (Thompsons) for the claimants; Daniel Barnett (Matthew Arnold and Baldwin, Watford) for the employers.