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The Tribunal System is a Lottery
The Scottish EAT in Camelot Group Plc v Hogg has slapped down the suggestion that an employer has to disclose redeployment job interview notes as part of a redundancy exercise.
Camelot had to make 58 out of 158 of its National Lottery sales employees redundant with the remaining 100 becoming retail sales executives.
The Claimant was interviewed on 22 April. She failed the interview (scoring 11/28) and at a meeting on 8 May was shown her scores broken down under four different headings. She was given the opportunity to comment on her scores.
At a meeting on 22 May the Claimant said she did not accept that the scores attributed to her fairly reflected her abilities but she did not give specific details. She asked to see a copy of her interview notes. This request was neither agreed to nor rejected at the meeting. She eventually received the notes between 1 and 5 June.
Before 5 June, the Respondent’s Head of HR decided to dismiss the Claimant as she had been unsuccessful at the interview and she was told this at a meeting on 5 June. At this meeting she did not raise any challenge to her scores or refer to anything contained in the interview notes with which she had been provided and had, by then, had time to consider.
Astonishingly the Tribunal found that the Claimant’s dismissal was procedurally unfair because the Respondent had decided to dismiss her prior to providing her with her interview notes. They awarded her over £15,000 compensation.
The Employment Appeal Tribunal rightly overruled this decision, saying that:
A) The Tribunal were wrong to suggest that whenever an employee who is at risk of redundancy makes any request for information, an ensuing dismissal will be unfair if that request has not been acceded to. Whilst an employer who has received a specific request for specific relevant information would be well advised to provide it, that was far from saying that it must to do so in respect of every unspecific request for documentation unaccompanied by reasoned justification.
B) Camelot was under no duty to provide the Claimant with a copy of her interview notes. It reflected well on them that they did so but it remained the position throughout that they were not put on notice that she had any complaint or challenge which she wished to raise under reference to them.
C) The Tribunal failed to stand back and ask whether, overall, there was a fair redundancy process, as they were required to do. They failed to take account of the opportunity that the Claimant had and used, to appeal; she could have raised any challenge, including in relation to her interview notes, in her appeal but did not do so.
D) The Claimant had ample opportunity to raise any query, complaint or challenge she had about her scores or her interview notes in a process which, overall, was thorough and careful. There was no basis on which it could be concluded that the decision to dismiss the Claimant was not fair.
The case does demonstrate that Tribunals can be very unpredictable – though as an employer the chances of success are better than 1 in 14 million (see article Employment Tribunal and Employment Appeal Tribunal statistics 2010-11 in this month’s Need to Know).
For further information on any of the points raised in this article, please contact a member of our employment team.