![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cincinnati Machine (UK) Ltd v. Francis [2000] UKEAT 643_00_1312 (13 December 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/643_00_1312.html Cite as: [2000] UKEAT 643_00_1312, [2000] UKEAT 643__1312 |
[New search] [Printable RTF version] [Help]
At the Tribunal | |
Before
HIS HONOUR JUDGE D PUGSLEY
MRS D M PALMER
MR G H WRIGHT MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | MR J A LLOYD Solicitor EEF Midland St James's House Frederick Street Edgbaston Birmingham B15 1JJ |
JUDGE D PUGSLEY
"the applicant was unfairly dismissed by being unfairly selected for redundancy If the respondent had applied the selection criteria, there is a 50% chance he would not have been made redundant. Accordingly, the applicant's compensatory award is to be reduced by 50%"
"18 We go on to consider whether the applicant was unfairly selected in the exercise of that procedure. We recognise that an inherently fair procedure can nevertheless be applied unfairly as against one or more employees. Whilst we have been careful not to replace our view of the applicant's abilities, by allocating Our marks for what we may have given, we have attempted to look carefully at the respondents' explanations for the marking system. We believe that we under a duty to do so if we are to consider the matter in accordance with "equity" under Section 98(4)."
"19……considerable doubts as to the authenticity of oral warnings given on 17 December. The note was not shown to the applicant at the time. There is no indication that it was to be considered as a warning, and in any event we would consider that it is unfair for an employee to receive an oral warning without being informed this is the case. We therefore find that the applicant was unfairly penalised in respect of the disciplinary record marking."
They then point out:
"20 The applicant scored the lowest marks in the entire assessment process ……..The applicant is, therefore, some considerable way off from the majority of the other employees . The poorest in fact of all those assessed"
Yet that was inconsistent with the objective evidence
"He works on the more expensive machines, has two City & Guilds certificates in Engineering and two programming certificates unlike many of his colleagues. He has served an engineering apprenticeship. He trained other employees who were not selected for redundancy. There has never been any formal complaint or warning that he could not work on other machines when asked. He had never been warned for being uncooperative. There has been no disciplinary procedure in relation to his performance or quality of work. His absences do not appear unusually high compared to the others. All of that is difficult to reconcile with such a poor mark."
"22 We can find no logical explanation as to why the applicant should receive such a low subjective marking when compared to various objective factors when he would otherwise be expected to score well. It seems to us that this marking system, which is heavily dependent on a subjective assessment, was applied unfairly against the applicant ."
The Tribunal make what might be said to be the jury point, but why not, they are an industrial jury:
"On the respondents' own markings, there would have been a serious question marks as to why such a poor employee continued to remain in their employ if these marks were representative of his skills, performance, attendance"
It then goes on to say this:
"The applicant does badly because these are largely subjective criteria and it was clear from Mr Carley's evidence that he did not think very highly of Mr Francis. We cannot help but think that the decision to make the applicant redundant had been made before the marking rather than the other way round and that this was based on what they thought of Mr Francis as a person rather than his work record. On these marks, he ought to have been an employee close to dismissal for poor performance. We are satisfied that the procedure was used in such a way that it penalised the applicant unfairly and caused him to be unfairly selected".
"23 We have considered carefully whether we should substitute some of the markings he ought to have received if he had been marked fairly than the marks that he did receive. We resist that temptation. It seems to us that taking an overall view, there was at least a 50% chance that if the criteria had been applied fairly to the applicant, he would not have been made redundant at all. On that basis, we find that the applicant was unfairly dismissed, but that his compensatory award should be reduced by 50% to reflect the possibility that he may have been made redundant in any event."
"quiet, did not seem to mix in with others, came in to work, did his job and went home again but was not as versatile as the other operators".
I think the point that both Industrial members would make, if a chap is doing a good job on an expensive machine, you do not move him to another machine, and that is a management decision.