Wednesday, 10 November 2010

New employment case on redundancy selection

Consultation must involve allowing the Claimant to comment on his selection scores for redundancy...

The EAT (HHJ Ansell) has handed down its decision in County Print v Page, which reinforces the proposition that: fair consultation in a redundancy exercise involves giving an employee an explanation for his scoring and a meaningful chance to comment on the scores.

In the seminal case of R v British Coal Corporation and Secretary of State for Trade and Industry ex parte Price and Others [1994] IRLR 72 Glidewell LJ said this:

"24. It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Council ex parte Bryant, reported, as far as I know, only at [1988] Crown Office Digest p19, when he said:

'Fair consultation means:

(a) consultation when the proposals are still at a formative stage;

(b) adequate information on which to respond;

(c) adequate time in which to respond;

(d) conscientious consideration by an authority of the response to consultation.'

The EAT took an opportunity to this and other authorities in this area, and, whilst cautioning against an impermissible "microscopic analysis" of scoring by tribunals, indicated that, particularly with subjective criteria, employees should have sufficient information to understand their scores and an opportunity to challenge them.
His Honour John Ansell commented: 'Had the Respondent been able to challenge the flexibility marking in the way that he sought to do before the Tribunal, those comments could have then been reported back to the markers for their consideration. If they then chose to adhere to their original scores it is difficult to conceive that the Tribunal would seek to interfere with that decision in those circumstances since there had been proper consultation'.

His Honour Justice Ansell further gave guidance on the 'Software' guidance:

(ii) Employers seeking to run a Polkey chance of dismissal in any event argument under Software 2000 must rely on "cogent evidence", rather than simply arguing that there was a percentage chance of dismissal. The Tribunal in this case had found that there was no cogent evidence to enable them to attempt to reconstruct "what might have been" (see Software paragraph 54 (3))On the facts of this case, the EAT observed that it was "completely fallacious" to say that as the Claimant was in a pool of three, there was a one-in-three chance of dismissal, even on similar scores.

Charles Price Barrister

The Equality Act 2010 and compromise agreements

For settlements not made through ACAS, a compromise agreement with the employer is only binding if it is a 'qualifying compromise contract' (s.144(4) EqA). This means the agreement must be duly compliant with certain conditions. One such condition is that the claimant received 'independent legal advice' (s.147 EqA).

A potential conundrum has arisen because of the new Equality Act definition of who can count as an 'independent adviser' so as to make a (non-ACAS) agreement enforceable (s.147 EqA). The literal interpretation of the way this section is currently drafted suggests that a solicitor who was instructed by the employee prior to the production of the final agreement for consideration is precluded from acting any further.
Despite a failure to refer to any departure from the old law in the Explanatory Notes to the Act, Section 147(5)(d) sets out that a complainant’s solicitor is a person “who is acting for a person” who is, per section 147(5)(a) and (b), either “a party to the contract or the complaint” or “connected to” such a person. On that basis section 147 (5)(d) would prohibit them from being an “independent adviser”.
The Government Equalities Office however has stated that 'the situation that existed prior to passage of the Act' remains unchanged and, by implication, that a solicitor who had advised a client in respect of an action would also be able to provide advice on a compromise agreement.

According to their web site, The Law Society has requested an urgent meeting with the Government Equalities Office to consider how this question can be resolved as well as notifying the Home Secretary of their concerns. They intend to produce a practice note soon.

By Charles Price
No5 Chambers