Mr P Morgan, of Counsel v Respondent — 2020

The claimant was employed by the respondent as a Band 8c Information and Analysis Lead Manager from 29 June 2009 until his dismissal on 1 May 2019. The respondent accepted that the dismissal was for redundancy and the tribunal found that the redundancy situation was genuine. The case concerned the fairness of the selection process used in Wave One of the respondent’s organisational change.

The tribunal found that the selection system was flawed in its design because key elements were not set out in advance in the Proposal for Change, including how the application-form and interview scores would be combined and what pass mark would apply. After the interviews and scoring had been completed, the panel made further adjustments to the scoring method, including zeroing the application-form marks, changing the weighting to a 50-50 split, and using a third marker for one disputed score. The tribunal accepted that these steps were taken with good intentions and found the claimant had not been unfairly marked per se, but it also found that the claimant had not prepared well for the process and did not perform well at interview.

The decisive failing was the setting of a 60% pass mark after the scores and rankings were already known, on a spreadsheet that identified the individual candidates. The tribunal found that this was not transparent or fair, did not comply with the spirit of the respondent’s guidance, and was not an objectively fixed criterion. It held that the pass mark was a movable measure used pragmatically to retain a minimum number of managers, and that the claimant was dismissed because of the imposition of that post hoc threshold.

The tribunal therefore held that the dismissal was unfair. It also recorded that if the 60% pass mark had been set before the assessments, there was at least a 50% chance it would still have been set at that level and the claimant would still have failed to pass. However, because the actual process used was unfair, the claim succeeded. The tribunal made no order for compensation or other remedy, recording that the claimant had secured alternative employment in the public sector, had suffered no pension loss, and sought only a declaration.