A redundancy process may be genuine and necessary, yet procedurally unfair. An Employment Tribunal (ET) made that point in the case of an automotive industry worker who would have kept his job had a selection criterion not been carelessly and mistakenly applied (Downey v Resource Management Solutions (North East) Ltd).

Amidst a round of redundancies necessitated by the COVID-19 pandemic, the vehicle handling operative was placed in a pool of eight employees, five of whom would lose their jobs. Against his employer’s selection criteria, he was assessed to have scored fifth highest. Following his dismissal, he launched ET proceedings.

The ET noted that there was a genuine redundancy situation. Both the selection of the pool, based on length of service, and the criteria applied to selecting the five who would lose their jobs were fair and reasonable. Upholding the man’s unfair dismissal complaint, however, the ET found that the scoring system employed was obviously unfair and likely to lead to a perverse outcome.

The system – which gave particular weight to engagement in training processes and leadership roles – was bound to unfairly skew the final result. It had highly unusual elements that would seem peculiar to an impartial observer. Giving an example, the ET noted that an employee with a poor disciplinary record would have kept his job in preference to one with an exemplary record merely because the former had completed an additional simple training session.

It was more likely than not that one of those who kept their jobs had benefited from some form of favouritism, whether conscious or unconscious. But for the mistaken and careless application of a criterion relating to absences from work, the man would in any event have scored in third place and been safe from redundancy. The unfairness to him was not cured by a subsequent appeal process. If not agreed, the amount of his compensation would be assessed at a further hearing.