Scoring Employees in a redundancy exercise

Employment Barrister Daniel Barnett explains the best way to score employees in a redundancy selection exercise.

The appeal courts have said time and again that tribunals mustn’t get too involved with the details of scoring, or decide whether they would have awarded the same scores, because scoring is something which falls within the range of reasonable responses (Bascetta v Santander [2010] EWCA Civ 351).

Rather, tribunals will focus on whether employers have a fair system for assessing employees against the scoring criteria. You always need clear guide backing up each of your selection criteria, so that managers know how to apply them. For example, on ‘disciplinary record’, a 5 might mean no disciplinary record, 2 reflects a written warning, and 0 reflects a final written warning.

There is an important exception to the rule that tribunals don’t second-guess scores, and that’s why you need to be careful that scores can be explained. That exception is where the tribunal suspects bias or obvious mistakes, when they will examine more closely how the scores were reached (Dabson v Cover & Sons EAT/0347/10). And almost by definition, when you’re in a tribunal, there’s a fair chance the employee is going to be saying there is bias or an obvious mistake — which means the tribunal may end up looking at individual scores.

One way of reducing the risks associated with subjective scoring (less benevolently described as guesstimating), or scoring by a single manager who might be a bully, or sexist or racist, or target somebody they dislike — is to allow subjective scoring but make sure that scores are allocated by more than one person after they’ve had a discussion. That introduces a system of checks and balances, which reduces the risk of a maverick manager scoring unfairly.

If you’re going to use subjective criteria, it’s not enough to have your two managers saying: ‘Well, I scored Cressida as a five and Rufus as a seven.’ Whether it’s one manager or two doing the scoring, they need to keep careful notes about the reasons for the scores. You can learn about the best way to keep records in Module 4.

I want to give you two examples of where things have gone wrong because there wasn’t enough guidance given to the managers (and it’s the responsibility of the person organising the redundancy process to have this in place).

The first example of the impact of the lack of explanation is Alexanders of Edinburgh Ltd v Maxwell (EAT/796/86), in which redundancy selection was made on the basis of ‘merit’. The manager wasn’t told what ‘merit’ meant, and the tribunal found that there had been no attempt to set out how the manager should assess staff in comparison to each other. The Employment Appeal Tribunal held that the scoring was unfair.

Another example is Wardle v Killingholme Stevedoring Ltd (ET 1807464/09). That case involved three managers doing the scoring from three different parts of the workforce. There was no moderation and no attempt to make sure there was any no consistency in the scoring. One of the managers was marking more harshly than the other two and, as a result, it was his employees who tended to score low and get selected for redundancy, and that was held to be unfair.

Top tips:

1. Explain the scoring to managers: someone should speak to the managers, collectively, before the scoring exercise starts, explaining what it’s all about and how to actually do the scoring.

2. Give the managers examples and notes: the managers should always have the examples and notes they need to help them achieve consistency. My model selection matrix shows you the sorts of notes to supply.

3. Review/moderate the scores: someone — whether HR or a more senior manager — should review the different scores and carry out a ‘sense check’. If one manager is marking noticeably more generously or harshly than others, there should be some sort of moderation and adjustment.