Mr M Islam-Choudhary, Counsel For the v Respondent — 2021

The claimant had been employed by IBM since 2000 and was seconded to Tech Data under the C4G programme from October 2018. The tribunal accepted that he was dismissed for redundancy, but noted that the secondment agreement required contact with IBM management and contemplated performance discussion with Tech Data. No annual or interim CheckPoint assessment was carried out during the secondment, and no formal performance report was sought from Tech Data before the redundancy scoring exercise.

IBM ran a redundancy programme in TSS in 2020 and placed the claimant in a sales pool of 44 employees. Mr Jones carried out the scoring using criteria including Skill Level, Potential, Approach to Work and Performance. The tribunal found that Mr Jones did not conduct an independent, objective and adequately evidenced assessment: he relied heavily on an isolated comment from Mr Breslin, on an untested complaint attributed to Ms Corbett, and on a short exchange relayed by Ms Patel with Mr Cary at Tech Data, while failing to follow the training that required robust evidence and input from relevant managers. The tribunal found that the negative material was not properly tested or put to the claimant, and that the process did not pay sufficient regard to the claimant’s secondment context or the structural difficulties affecting Project Maria.

On appeal, Mr Frisby made some changes, including increasing the Approach to Work score, but he also relied on Project Maria’s poor commercial results and did not carry out the fuller inquiry needed to cure the defects in the original selection process. The tribunal held that the appeal did not make the dismissal fair. It concluded that the scoring and ranking exercise was biased, superficial and inadequate, and that the claimant’s dismissal was unfair under s.98(4) ERA 1996. The tribunal also found that there was a 50% chance the claimant would have been dismissed even if a fair process had been followed, so any compensatory award would fall to be reduced by 50% under Polkey principles.