Successful unfair selection for redundancy claim against IBM

In the recent case of Mr C Smith -v- IBM United Kingdom Ltd:1305836/2018, an employment tribunal sitting in Birmingham decided that Mr Smith had been unfairly selected for redundancy.

The tribunal found that the dismissal was unfair on the basis that:

1. Whilst IBM had used common scoring criterion to select Mr Smith, they had not undertaken the scoring in a reasonable manner. IBM use CheckPoint scores to evaluate an employee when determining potential bonuses and career progression, which were then used to score the claimant as part of the redundancy selection. These scores had been communicated to the claimant in the past, but he had not been informed that they could form the basis of scores in a redundancy selection process. The claimant argued that he had not challenged these scores previously because he was ambivalent about bonuses, but that he would have challenged them had he have known that they could be used in a redundancy scenario. The employment tribunal decided that it was unreasonable to rely on scores that were produced for one purpose in a different context.
2. It was considered that the scores awarded were not, “transparent or obviously objective”. The respondent then struggled to explain in evidence why these particular scores had been given and they appeared to be based on the subjective views of managers with very little objective assessment having taken place.
3. The tribunal found that the consultation with the claimant was flawed because the claimant had not been made aware of how he would be scored, neither was he informed that he could challenge the score, or given the information required to do so. Whilst it is not strictly necessary to agree the criterion to be used with individual employees, the tribunal found that it was unreasonable in this particular case to not discuss the criterion with the claimant given that he had not been in a position to challenge the CheckPoint scores previously and was unaware that they would be used for a redundancy selection. In addition to this, to then not provide the claimant with the information that he needed to challenge the scores was deemed to be unfair.

The tribunal therefore decided that the dismissal was unfair and did not attempt to ‘re-score’ the claimant, making the decision that they were unable to determine what the outcome would have been had the selection for redundancy been fair. As there were two people in the pool for selection, the tribunal decided that there was at least a 50% chance that the claimant would have been selected fairly for redundancy. As such, the compensation to be awarded to him would be reduced by this amount.

This case is a helpful reminder that a redundancy procedure needs to be more than just a box-ticking exercise. Whilst tribunals tend to accept that some subjective aspect to scoring is legitimate, they will also tend to take the view that it is unfair to rely solely on subjective factors when applying scores to criteria.

Moreover, if an employer is going to rely mainly on subjective assessments, they will need to go into greater depth when consulting with employees to ensure that the individual has had sufficient opportunity to challenge the scores.

A link to this case can be found here.

Please note, the information included in this update is correct at the date of publishing.