Employment Appeal Tribunal confirms the distinction between the test of fairness in a process of selection for redundancy, and the test that applies to the process of selection for appointment to an alternative new role.
The Employment Appeal Tribunal (“EAT”) held that a Tribunal had not fallen in to error in concluding that an employee’s dismissal, by reason of redundancy, was not rendered unfair by the employer’s failure to precisely follow and rely upon the application process it had established for a new role.
This was the case notwithstanding that the Tribunal had found as fact that the employer had:
- diverted from its original job description and person specification for the role (the successful candidate did not hold the minimum qualifications stated to be required for the role);
- allowed the successful candidate far longer for his presentation than the 10-15 minutes allotted; and
- failed to mark the candidates against the scoring system prepared.
The EAT reiterated that the guidance laid down in the leading case of Williams v Compair Maxam (principally that an employer must seek to establish fair and objective selection criteria and seek to ensure that selection is made fairly by reference to those criteria) applies only to the selection of employees who are to be made redundant from within an existing group.
In cases such as this one (which instead centred on the process for consideration of more than one applicant for a new role created out of a reorganisation) a Tribunal is required to consider all the facts and circumstances of the process followed by the employer in order to determine whether the dismissal of an unsuccessful applicant was fair (by reference to section 98(4) of the Employment Rights Act).
The EAT confirmed that the Tribunal was entitled to consider the extent to which an interview process was objective, but should keep carefully in mind that an employer’s assessment is likely to involve a substantial element of judgment.
This case is a helpful reiteration of the different tests that apply as between selection for redundancy and selection for a new and alternative role. However, it only serves to emphasise the unpredictability of a Tribunal’s decision in relation to the fairness of an application process.
In this case, the Tribunal had identified a number of facts which exposed the employer to potential criticism, but nonetheless found the dismissal of Mr Morgan (the unsuccessful applicant) to be fair. It seems equally possible that an alternative Tribunal would have come to a different conclusion when faced with the same facts. What is clear, however, is that no matter how surprising a decision may be from one party’s perspective, unless the Tribunal has applied the relevant legal test incorrectly or made its decision perversely (i.e. there was no evidence to support the decision, or the Tribunal failed make findings of fact on which there was undisputed evidence) then it will be unassailable on appeal.
The Claimant and a colleague were made redundant and their roles were replaced by one amalgamated wider role; they were both interviewed for the new role. Despite the fact that the Claimant met the new job description and the colleague did not, the colleague was given the job.
For further information on this acticle email Adam Williams, Associate in DMH Stallard's Employment Group at firstname.lastname@example.org