The ‘Minimalist’ Approach to Minimum Standards of Procedural Fairness
1. INTRODUCTION
The Employment Appeal Tribunal (EAT) in GM Davies v Farnborough College of Technology1 (Davies) considers in what circumstances there will be a breach of the statutory disciplinary and dismissal procedures leading to an automatically unfair dismissal under Part 1 of Schedule 2 to the Employment Act 2002. In adopting a narrower interpretation of basic statutory minimum standards, this judgment represents a further striking instance of the erosion of procedural justice in the law of unfair dismissal.
2. THE FACTS
Mr Davies was one of the three lecturers in the marketing department of Farnborough College of Technology (‘the College’). There had, however, been a steady decline in the demand for courses over recent years and it had become clear there was a redundancy situation. The College adopted 11 selection criteria in order to select which of the three lecturers to make redundant. It decided to dismiss Mr Davies on the basis that he had consistently scored lower than the other two candidates. Mr Davies had worked for the College for nearly 20 years when his employment was terminated. Halfway through a second meeting with the employer, he was told that his marks were significantly lower but, notably, the College did not provide him with his individual marks. It was potentially significant in the statutory context that Mr Davies was given no indication beforehand that this would be the nature of the particular meeting or that he had been provisionally, if not actually, selected for redundancy. He exercised his right of internal appeal—still without his individual marks—where a ‘full discussion’ of the application of the selection criteria to him took place but was unsuccessful. He was there given ample opportunity to correct, supplement and challenge the College's findings that he was significantly the weakest of the three candidates. Yet Mr Davies was still dissatisfied …
