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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Semple Fraser LLP v Daly (Unfair Dismissal : Reasonableness of dismissal) [2010] UKEAT 0045_09_2206 (22 June 2010)
URL: http://www.bailii.org/uk/cases/UKEAT/2010/0045_09_2206.html
Cite as: [2010] UKEAT 0045_09_2206, [2010] UKEAT 45_9_2206
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EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At the Tribunal
Before
MR J KEENAN MCIPD
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(of Counsel) Instructed by: Messrs Miller Samuel LLP Solicitors RWF House 5 Renfield Street Glasgow G2 5E2 |
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(Advocate) Instructed by: Messrs Harper Macleod Solicitors The Ca’d’oro Building 45 Gordon Street Glasgow G1 3PE |
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
Redundancy. Application of selection criteria. Appeal against Employment Tribunal’s finding of unfair dismissal upheld in circumstances where they had re-marked the scores of the Claimant and another employee so as to arrive at equal scores and concluded that, “therefore”, the Claimant was unfairly dismissed. The Tribunal had embarked on an exercise that was not open to it, there was no indication that it had applied the correct statutory test and it had substituted its own view without considering what would have been the approach of a reasonable employer. Appeal allowed and claim dismissed.
THE HONOURABLE LADY SMITH
Introduction
1. This is an appeal from the judgment of the Employment Tribunal sitting at Glasgow, Employment Judge Walter Muir, registered on 27 July 2009, finding that the Claimant was unfairly dismissed and otherwise sisting the case for parties to consider their positions regarding remedy.
2. We will continue referring to parties as Claimant and respondents.
3. The Claimant was represented by Mr G Miller, solicitor, before the Tribunal and by Ms Marsh, Advocate, before us. The Respondent was represented by Ms M Dalziel, solicitor, before the Tribunal and by Mr Napier QC, before us.
Background
4. Put briefly, the Claimant had a training contract with the Respondent and was employed by them, as a solicitor, thereafter, as from 1 September 2008. She was employed in the corporate department in their Glasgow office, working in a team headed up by a partner, Mr Russell. As at that date the team comprised Mr Russell, Mr O’Gorman, a solicitor who had joined the firm in April 2008, the Claimant, and a trainee.
5. By 2008, there was an economic downturn and in June 2008, it became apparent to the Respondent that they may have to make some employees redundant. By September 2008, the Respondent’s Board decided that there would require to be redundancies. In the case of Mr Russell’s team there was a requirement to reduce the two qualified solicitors to one. Thus, either the Claimant or Mr O’Gorman would be made redundant. The Respondent’s Human Resources director advised on a scoring system, Mr Russell carried out a provisional scoring in accordance with it and the Claimant and Mr O’Gorman were advised that they were at risk of redundancy. The Board had determined that scores should be moderated by a panel and that was carried out. After moderation, the Claimant scored 38 points and Mr O’Gorman scored 42 points. The Respondent’s decided, on that basis, to dismiss the Claimant. She appealed. Her appeal was heard by a partner from the Edinburgh office who specialised in commercial property. That partner was satisfied that the scores on their moderated basis afforded a level benchmark across the firm as a whole and upheld the decision to dismiss the Claimant. She rejected suggestions made by the Claimant that LIFO should have applied and that the exercise had been a sham.
6. We note that the criteria applied by the Respondent was overall work performance, current appraisal of skills and competencies, consistency of financial performance, PI claims, attendance record, business contribution, business development, and management/mentoring. Ultimately, matters focussed on the scores awarded to Mr O’Gorman for mentoring and business development. The Claimant’s case was that he should not have scored any points under these criteria.
7. As regards mentoring, Mr O’Gorman had been appointed as mentor to the trainee in Mr Russell’s team at the beginning of September 2008. At the time he was being scored, which was very shortly after his appointment, he had not performed any specific mentoring tasks. The Claimant had not been appointed as anyone’s mentor. As regards business development, Mr O’Gorman had brought with him to the firm business of a client who had followed him from his previous firm, a well known firm in London.
8. Mr O’Gorman was given a score of 1 for mentoring (with a weighting of x2) and a score of 3 (with a weighting of x 2) for business development. The latter score was increased from a provisional score of 2 once account was taken of the business he had brought in from the client that had followed him from his previous firm.
The issue
9. Parties were agreed that there was a genuine redundancy and that there was a pool of two, namely the Claimant and Mr O’Gorman, one of whom would require to be dismissed.
10. According to the Tribunal, the critical issue was whether or not the Respondent had applied their selection criteria fairly and Ms Marsh, before us, confirmed that that was the case. Although Mr Miller had, at one point, submitted that the mentoring criterion was itself unfair (because it related solely to appointment as a mentor without reference to mentoring work having been carried out), the Tribunal did not profess to accept that criticism; they found that the Respondent “had chosen a range of criteria which could not be faulted” (page 17, line 16-17).
The Tribunal’s judgment
11. The Tribunal firmly rejected an assertion that was made by the Claimant to the effect that Mr Russell had deliberately favoured Mr O’Gorman. They concerned themselves only with the Respondent’s scoring of Mr O’Gorman in respect of the criteria (of which, as we have noted, of themselves, they had no criticism to make).
12. The Tribunal examined the scoring of each criterion in detail and re-marked the scores awarded by the Respondent to Mr O’Gorman for two of them, namely mentoring and business development.
13. As regards mentoring, at page 7, the Tribunal record the guidance provided by the Respondent’s HR director regarding that criterion:
“If the employee currently has, or in his/her career to date has had, a formal ‘line management’ responsibility for another solicitor this should be scored at 3 points.
If the employee currently acts or in his/her career has acted, as a Mentor for a Trainee Solicitor in the Firm, this should be scored as 1 point.”
14. The guidance also provided for the mentoring score to be given a weight of x2.
15. At page 17, the Tribunal discuss Mr O’Gorman’s mentoring score :
“ …the Tribunal accepted the fairness of mentoring as a criterion. There was a clear value in the task associated with mentoring. However, the respondents required to go further here. Appointment as a Mentor was, of itself, insufficient in the Tribunal’s view. Appointment was only part of the performance of the duties associated with mentoring. Mr O’Gorman had been appointed a Mentor. The Tribunal accepted on a clear balance of probabilities that he had not actually carried out any mentoring tasks. It was probably the case that when Mr Russell came to carry out the scoring that Mr O’Gorman had not even undergone any training as a Mentor. This issue was not either raised by the claimant or considered by Mr Russell or by Ms Carson at the consultation and appeal stages. For that reason it did not occur to them that they needed to go beyond the fact of appointment and look at whether any actual mentoring work had been carried out. The Tribunal concluded, therefore, that it was not in accordance with fairness for Mr Russell to have awarded Mr O’Gorman one point in respect of the mentoring criterion absent Mr O’Gorman carrying out any mentoring work at all at the selection stage.”
16. As to the business development criterion, the Tribunal refer, at page 17, to the terms of the HR guidance. It provided:
“Definition: undertakes business development activity and secures new business as a result.
· Strong track record of business development resulting in new work for the Firm – 3 points
· Evidence of business development but which has not led to new work for the Firm – 2 points
· No or minimal evidence of business development activity – 1 point
This definition, as for the firm’s PDR process, is directed both at ‘new business’ and the management of existing clients for ‘repeat’ business.”
17. The Tribunal decided that the Respondent had erred in awarding Mr O’Gorman 3 points. At page 17, they state:
“to obtain three points ……….there must be a “Strong track record of business development resulting in new work for the Firm”. Mr Russell concluded that this “strong track record” rested on one piece of business which Mr O’Gorman had brought in. The Tribunal regarded this as being wholly disconfirm to a reasonable understanding of what a “strong track record” could reasonably comprise. By definition it has to comprise more than one piece of business. The Tribunal concluded that Mr Russell was in error when he awarded Mr O’Gorman one extra point on the basis of a single piece of business. The effect of this is that Mr O’Gorman’s score of six for business development ought to have remained at four.”
18. The upshot of the Tribunal’s re-marking was that they arrived at a score of 38 for Mr O’Gorman which was the same as the Claimant’s score. In the second paragraph on p.18, they state:
“The effect of these successful challenges is that Mr O’Gorman’s score of forty- two points falls to be reduced by four to thirty-eight which is exactly the claimant’s score. It follows from this, therefore, that the claimant has been unfairly selected for redundancy.”
The appeal
19. For the Respondent, Mr Napier QC submitted that the Tribunal had fallen into error. There were two principal respects in which their error was evident. One was in their conclusion that the dismissal was unfair because the Claimant’s score was brought out as being equal to Mr O’Gorman’s. There was, however, no evidence before the Tribunal that entitled them to conclude that where there were level scores any redundancy dismissal of the Claimant (rather than Mr O’Gorman) would have been unfair. It was accepted that there was a genuine redundancy situation and that there was a pool of only two. The Tribunal’s conclusion was illogical. There was a clear error of law.
20. Separately, it was plain that the Tribunal had substituted its own views for that of the reasonable employer, scrutinising the scores to an extent that they were not entitled to do. They had given no consideration to whether or not, overall, dismissal was within the band of reasonable responses.
21. As to mentoring, it was plain that the Tribunal had substituted its own judgment for that of the reasonable employer. It simply did not follow that it was unreasonable to give a point to Mr O’Gorman for having been identified as appropriate to act as a mentor and having had that responsibility conferred on him. As to business development, it was simply not correct to say that the only definition of strong track record was that it required an employee to have generated more than one piece of business. It was a matter for the judgment of the employer and it could not be said that it was unreasonable to approach matters as the Respondent had done.
22. In the course of his submissions, Mr Napier referred to: (a) The Earl of Bradford v Jowett [1978] IRLR 16 as an early example of recognition of the need for Tribunals to avoid substituting their own judgment for that of the employer over who should be selected for redundancy and that they needed to remember that the question for them was whether, bearing in mind the statutory language, the employer acted reasonably in dismissing the employee for redundancy; (b) Williams and others v Compair Maxam Ltd [1982] 83 for the well known guidelines regarding redundancy dismissals (the fourth of which, that concerns the need for employers to seek to ensure that selections for redundancy are made fairly in accordance with the relevant criteria was relevant in the present case) and the observation that Tribunals should direct themselves that it is not their function to decide whether they would have thought it fairer to act in some other way since the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted; (c) Eaton Ltd v King [1995] IRLR 75 for the comments made by this Tribunal to the effect that the test, when considering redundancy dismissals, is whether there has been an honest and reasonable process of assessment by the employer and it is not a question of how the Tribunal would themselves have marked the assessment; (d) British Aerospace plc v Green and others [1995] IRLR 433 for the observations of Waite LJ and Millet LJ endorsing the approach of this Tribunal in Eaton Ltd v King; (e) John Brown Engineering Ltd v Brown and others [1997] IRLR 90 for this Tribunal’s observations that in a redundancy situation what matters is that there is a fair process and that it is not part of the Tribunal‘s role to examine the marking process under a microscope; (f) Sanmina SCI UK Ltd v McCormack and others EATS/0066/05 for the observations to the effect that the correct approach was to consider whether the employer had acted reasonably and whether it could be said that no reasonable employer could have, in that case, adopted a particular criterion; and (g) Bascetta v Santander UK plc [2010] EWCA Civ 351 for the Court of Appeal’s recent restatement of the relevance of the observations made in British Aerospace v Green, of this Tribunal in Eaton Ltd v King and of it not being appropriate for an Employment Tribunal to embark on a reassessment exercise.
23. Mr Napier submitted that the appeal should be allowed and that we should substitute for the judgment of the Tribunal a finding that the Claimant’s claim be dismissed.
24. For the Claimant, Ms Marsh submitted that the Tribunal had not gone beyond the legitimate scope of enquiry; the authorities showed that there could be cases where it was appropriate for a Tribunal to scrutinise an employer’s scoring in a redundancy case. In addition to those authorities to which Mr Napier referred, she referred to King v Eaton [1996] IRLR 199, Eaton v King EAT/1353/96, King v Eaton [No.2] [1998] IRLR 686, FDR Ltd v Holloway [1995] IRLR 400. Her submission was, shortly put, that the discussions in these authorities showed that it was not the case that it would never be appropriate for a Tribunal to scrutinise scoring. In this case, the Claimant had asserted that the procedure was a sham and that Mr Russell had deliberately favoured Mr O’Gorman; the Tribunal were, accordingly, entitled to embark on the exercise that they carried out. They were entitled to take a “tight” approach to the two criteria concerning mentoring and business development. She accepted, however, that the Tribunal did not require to re- mark the scores. That being so, their approach should be seen as one of remarking on the process rather than “re- marking” the scores. As to their approach once they had decided the scores were level, Ms Marsh very frankly and properly accepted that there was an apparent difficulty. The Tribunal could, however, she said, have asked for more evidence or submissions on the matter or they could be interpreted as having concluded that overall the evidence showed that it was unfair to dismiss the Claimant, one of the circumstances being that the scores were tied.
25. Ms Marsh also very properly accepted that the Tribunal’s judgment lacked reasoning and the application of the proper test was not readily apparent from it. She reminded us that it was not, however, of itself, an error for a Tribunal to fail to refer to the statutory test or to the range of reasonable responses (United Distillers v Conlin [1992] IRLR 503; Williams v Compair Maxam). There could be a remit to the Tribunal to apply the appropriate test and explain their reasons.
Relevant law
26. Section 98 of the Employment Rights Act 1996 provides that it is for the employer to show the reason for a dismissal (s.98(1)) and that redundancy is a potentially fair reason (s.98(2)(c)). Whether or not dismissal for that reason is fair or unfair depends on the answer to the question in section 98(4):
“…where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
27. Accordingly, once a potentially fair reason for dismissal is established, the question of whether or not the employer acted reasonably in deciding to dismiss lies at the heart of every case where a claim for unfair dismissal is pursued including cases of dismissal on grounds of redundancy. It is not for an Employment Tribunal to ask themselves whether they would have dismissed the employee; it is not for them to seek simply to substitute their own decision for that of the employer (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439). As explained in Iceland Frozen Foods, that is because the concept of reasonableness as used in s.98(4) involves recognising that, in many cases, there will not be a single reasonable response to the circumstances that have led to the dismissal; there will be a band of reasonable responses within which one employer would reasonably take one view whereas another, equally reasonable employer, would take a different view. To put it another way, in many cases, there will be room for legitimate differences of opinion amongst reasonable employers as to what is a fair way to respond.
28. Against that background, various observations have been made in the authorities regarding redundancy dismissals which show that, in assessing the reasonableness of a decision to dismiss for redundancy, it will rarely be appropriate for an Employment Tribunal to embark on a detailed scrutiny of the criteria used for scoring or the application of those criteria to the particular circumstances of the claimant and others in the same pool. In Buchanan v Tilcon Ltd [1983] IRLR 417, a decision of the First Division in which the opinion was delivered by the Lord President (Lord Emslie) (referred to in both Eaton Ltd v King in 1995 and British Aerospace plc v Green) a clear limitation is expressed as to what was to be expected so far as scrutiny of employers acting in a redundancy situation was concerned:
“ …In this situation where no other complaints were made by the appellant all that the respondents had to do was to prove that their method of selection was fair in general terms and that it had been applied reasonably in the case of the appellant by the senior official responsible for taking the decision. As was pointed out by Phillips J in Cox v Wildt Mellor Bromley Ltd [1978][1978] IRLR 157 it is quite sufficient for an employer in a case such as this to call witnesses of reasonable seniority to explain the circumstances in which the dismissal of an employee came about and it was not necessary to dot every “i” and to cross every “t” or to anticipate every possible complaint which might be made.” (at p. 418)
29. In the same vein, in British Aerospace plc v Green, Waite LJ, at paragraph 3, said:
“Employment law recognises, pragmatically, that an over-minute investigation of the selection process by the tribunal members may run the risk of defeating the purpose which the tribunals were called into being to discharge – namely a swift, informal disposal of disputes arising from redundancy in the workplace. So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of him.”
and Millet LJ, as he then was, at paragraph 25, having observed that the question for the tribunal in the case of a claim for unfair redundancy dismissal is whether the employee who is claiming was unfairly dismissed, not whether some other employee could have been fairly dismissed, continued:
“If the applicant can show that he was unfairly dismissed, he will succeed; if he cannot, he will fail. It will not help him to show that by the same criteria some other employee might not have been retained. The tribunal is not entitled embark upon a re-assessment exercise. I would endorse the observations of the Employment Appeal Tribunal in Eaton Ltd v King and others [1995] IRLR 75 that it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered…”.
30. The same theme was taken up by this Tribunal in John Brown Engineering Ltd v Brown and others. At paragraph 8, Lord Johnston said:
“……..in each case what is required is a fair process, where an opportunity to contest the selection of each individual is available to the individual employee……………….it also has to be reasserted that it is no part of the industrial tribunal’s role in the context of redundancy to examine the marking process as a matter of criteria under a microscope; nor to determine whether, intrinsically, it was properly operated. At the end of the day the only issue is whether or not the employers treated their employees in a fair and even handed manner.”
31. Then, in Sanmina, Elias J, as he then was, rejected the claimant’s contention that an employers “absence” criterion should have included something to allow for the reason for absence, observing at paragraph 86, that to have acceded to that submission would have been to allow exceptions to what was a “carefully drafted” redundancy scheme and the Tribunal’s upholding of that contention had amounted to a substitution of its own view. At paragraph 87, he explains that this Tribunal was satisfied that:
“it could not properly be said that no reasonable employer could adopt this criterion.”
32. Later in the judgment, at paragraph 93, he refers to the need to consider whether a particular approach to scoring was within the band of reasonable responses that was open to a reasonable employer.
33. Finally, the judgment of the Court of Appeal in Bascetta v Santander makes it clear that the principles articulated in the earlier cases, referred to above, still hold good. The passages that we have referred to in both British Aerospace plc v Green and Eaton Ltd v King are referred to with approval and at paragraphs 29–30, the judgment of Pill LJ includes the following comments:
“29. ….The question for the industrial tribunal, which must be determined separately for each applicant, is whether the applicant was unfairly dismissed, not whether some other employee could have been dismissed……….It will not help him to show that on the same criteria some other employee might not have been retained.
30. The Tribunal is not entitled to embark upon a reassessment exercise.”
34. Whilst, as Ms Marsh correctly submitted, it is not the case that it will never be appropriate for a Tribunal to examine scoring in a redundancy case, a Tribunal would require to have a sound basis for doing so. There would require to be some finding which pointed to the possibility of the employer not having acted reasonably in devising or applying the scoring system adopted (such as, for instance, a finding that the employer had an ulterior motive or that he intended the system to produce a particular result so far as the identity of those to be made redundant was concerned). Mere suspicion on the part of the claimant employee would not be enough.
35. Separately, it is, of course, the case that it is not an error of law for a Tribunal to fail to refer to the relevant statutory provisions or, indeed, to articulate the Iceland Frozen Foods mantra of the band of reasonable responses (alliteratively transposed in common parlance to the “range” of reasonable responses): United Distillers v Conlin [1992] IRLR 503; Conlin v United Distillers [1994] IRLR 169. However, that does not absolve them of the responsibility to make it clear that they have applied the correct test in law and if a Tribunal does not, in its judgment, relate its conclusion to the relevant legal principles it runs the risk of it being concluded that they have failed to have regard to them.
Discussion and decision
36. We turn firstly to the Respondent’s submission that the Tribunal’s decision was shown to be perverse by their having concluded that the dismissal of the Claimant was unfair solely on the basis of her and Mr O’Gorman scoring equal scores (on their re-marking of them). We are satisfied that the submission was well founded. Even if the scores should have been equal, it does not obviously follow that the Claimant was “therefore” unfairly dismissed. There was a genuine redundancy situation. One of the two jobs had to go. That meant that the Respondent had to choose between the Claimant and Mr O’Gorman. The implication of the Tribunal’s approach is that equal scores showed that the only reasonable approach would have been to dismiss Mr O’Gorman. The Tribunal do not, however, record any evidence that could have supported that conclusion nor do they make any findings that could have done so. We would add that we understand from the account given to us that no witness was asked what would have been the outcome if the scores had been equal; that is, not only do the Tribunal not record any such evidence but it was accepted on behalf of the Claimant that there was none.
37. To put matters another way, we cannot accept that the single fact of equal scores showed that the Respondent acted unreasonably in deciding to dismiss the Claimant. Indeed, on the face of matters, if equal scores meant that it was unfair to dismiss the Claimant, it would surely have been equally unfair to dismiss Mr O’Gorman; the Tribunal has not recognised the inherent illogicality in their approach. We have to say that we had the impression that Ms Marsh very responsibly recognised that there was a difficulty here; her attempts to meet it by suggesting that the Tribunal could have asked for further evidence or submissions do not, however, assist. It was for the Claimant to make out her case, not for her to rely on the Tribunal to make suggestions as to how she might do so.
38. Our decision that the Tribunal’s conclusion was perverse is not, however, an end of the matter. We are also satisfied that the Tribunal erred in law in that they failed to apply the correct test in law. This is not a case where, despite not articulating the relevant legal principles, it can be seen from their reasoning that they have applied them. On the contrary, we cannot see that they have. We find no indication of the Tribunal bearing in mind that the statutory test required them to ask themselves whether or not the Respondent acted reasonably in deciding to dismiss the Claimant, that in applying that test they required to remember that there was a band of reasonable responses open to the reasonable employer, or that on numerous occasions, courts including the Inner House of the Court of Session, the Court of Appeal, and this Tribunal, have warned against Tribunals becoming embroiled in a re-marking exercise.
39. Looking to the specifics of this case, we have considered whether or not, on the facts found, there was some justification for scrutinising the scoring but we find none; on the contrary, the Tribunal state in terms that they did not accept the Claimant’s assertion that Mr Russell deliberately favoured Mr O’Gorman over the Claimant but, rather, approached the case on the basis that he had to carry out the unenviable task of making one of two employees redundant when he valued them both highly. There is nothing in the findings that hints at an ulterior motive or other reason for being concerned that scoring system might have been unreasonable or that it might not have been fairly and reasonably carried out.
40. Turning then to the matter of mentoring, we consider there to be an inherent contradiction in the Tribunal’s approach. As above noted, they approved the criteria that were adopted as having been “a range of criteria that could not be faulted.” That is, they did not fault the mentoring criterion itself. Then, the Claimant’s submission, as is recorded by them, was that what that criterion referred to was confined to the fact of appointment as a mentor. We agree that that is a fair reading of the criterion as set out in the guidelines. The Claimant did not suggest that its wording was such as to show that it should be interpreted as requiring actual mentoring activity before any points could be awarded. The Tribunal, however, in effect found that the criterion should have been read as carrying the qualification that nothing could be awarded unless actual mentoring activities had been carried out. That approach ignored the Claimant’s approach in submission and, more importantly, did not involve any consideration of what would have been the approach of a reasonable employer. We do not accept that it could be said that no reasonable employer could have regarded the criterion as satisfied on the basis that an employee has been appointed as a mentor, involving as it does, the inference that that employee has been assessed as being an appropriate person to perform an important and responsible role.
41. As regards the business development criterion, we do not agree that the only definition of “strong track record” is one which comprises more than one piece of business. The Tribunal did not consider whether it would have been open to a reasonable employer to take the view that a strong track record could be demonstrated by an employee showing that a client had followed him from his previous firm, bringing business with him. They ought to have done and if they had, we consider that they could only have determined that it would be a matter of judgment in the light of the guidelines. Read as a whole, the guideline for business development allows for two points to be scored where, notwithstanding the general definition that includes “secures new business” the employee has not actually secured new work for the firm at all. That indicates that the intention is to allow for a judgment to be reached according to the particular circumstances of the individual employee. The fact that the Respondent was prepared to allow a point to be scored even if no actual business had been secured is indicative of a generous approach on their part. The Tribunal erred in approaching this as though a dictionary definition fell to be applied. Had they considered matters properly, they could not have concluded that the Respondent failed to act reasonably as regards Mr O’Gorman’s scores for business development.
42. Finally, we observe that the Tribunal failed, after having re-marked the scoring, to stand back and ask themselves whether, overall, the Respondent could be said to have reached a decision which was not open to a reasonable employer, in all the circumstances. Those circumstances were that they had given appropriate notice of the risk of redundancies, they had set up a system for identifying the right pool which was not criticised, they had consulted, they had adopted a carefully structured list of criteria which the Tribunal considered was not open to criticism, they had moderated scores in the light of representations, they had no ulterior motive, just the unenviable task of having to make redundancies which they did not relish doing and the scorer reached decisions as to the scores in the honest belief that they were, in the light of the guidance, the appropriate scores. Those scores showing a disparity in points between the two contestants for the post that was to remain, the employee with the lower set of points was dismissed. Even if different scores could have been reached by another employer that does not show that these Respondents acted unreasonably.
43. In all the circumstances, we are persuaded that the only conclusion open to the Tribunal was that the dismissal of the Claimant was fair. The Employment Tribunal, however, plainly set out, erroneously, to ask themselves what they would have done and substituted their own view for that of the reasonable employer, thus arriving at the conclusion that the dismissal was unfair. We are satisfied that they erred in so doing and had they not fallen into error, they would have required, on the facts found, to reject the claim.
Disposal
44. We will, accordingly, pronounce an order upholding the appeal and dismissing the Claimant’s claim.