Dark law – Motives for unfair dismissal Part 3
22 May 2009
By James Medhurst
Like dark matter, dark law is not possible to observe directly but its existence can be detected by the gravitational forces that it exerts on visible law, which are not always straightforward. Sometimes it appears as a negative, as in the case of Mercy v Northgate, which is authority for the proposition that a tribunal is not required to find bad faith in order to conclude that a redundancy consultation is unfair. The question remains, however, why the tribunal accepted such a submission in the first place and why the Court of Appeal subsequently entertained an appeal on this point. It can only be that, although this is not the right approach, there is nevertheless some truth to it. Certainly, in my experience, tribunals often look for bad faith that is not expressly pleaded and are influenced by whether they find it or not.
Just as for misconduct, there may be evidence of an ulterior motive which pre-dates the redundancy situation. However, where the consultation is well documented, any bad faith can often be inferred from both the selection criteria and the individual scores themselves. Ludicrously low scores can be a dead giveaway, as can weightings to the criteria which appear to have been delicately calculated to achieve a particular result. Often the motive has nothing to do with the people being dismissed but rather with those being retained, which can be indicated by a choice of selection criteria that are fulfilled by the latter but which are not genuinely necessary for the job. In cases like this, the dismissal will be unfair.
Individual redundancies are often suspicious because genuine financial difficulties more often result in multiple job losses and they are more consistent with the possibility that someone has been targeted for dismissal. On the other hand, mass redundancies are treated differently by tribunals partly because they are sympathetic to the tough decisions which have to be made by companies in trouble and partly because improper motives are much less likely to explain the choice of selection criteria in these cases. It is hard to credit that an employer could carefully choose criteria in order to ensure that a particular twenty out of a pool of one hundred would be selected for redundancy. In such cases, serious flaws in the scores themselves would usually have to be found in order to show that there has been bad faith.
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