Redundancy and competitive interview process

Gwynedd Council v Barratt

Although an employer can take a ‘forward thinking’ approach using a competitive interview process when considering redundant employees for alternative employment, especially where the role is at a high level and involves a promotion, in this case, where the employees were not consulted with and were essentially applying for their own jobs, rather than applying a scoring matrix, this rendered their dismissals unfair.

Background

Gwynedd Council decided to reorganise schools in the local area. It closed several primary schools, including that at which Ms Barratt was working, and instead combined them to form one new school. However, instead of applying a scoring matrix to determine which teachers would be made redundant, the council decided that the staffing of the new school would be decided by an application and interview process. Ms Barratt was effectively applying for her former job as a PE teacher in a new school on the site of her former school. She applied for a role but was unsuccessful. There was no consultation or right of appeal. She was subsequently made redundant and brought an unfair dismissal claim. A tribunal found her dismissal unfair because she’d not been consulted, she’d not been offered a right of appeal and because of the way in which she was required to apply for and be interviewed for her own job (rather than be selected for redundancy in the usual way). Gwynedd Council appealed arguing that the tribunal had applied the case law guidelines on redundancy process too rigidly.

EAT decision

The appeal was dismissed.

The seminal case where redundancies are concerned is the 1982 EAT decision in Williams v Compair Maxam. In short, the guidance in that case consisted of 5 points: give as much warning as possible, consult, establish objective selection criteria, select in accordance with those criteria, and consider alternative employment.

The EAT accepted that the existing case law makes clear that ‘where an employer has to decide which employees from a pool of existing employees are to be made redundant, the criteria will reflect a known job, performed by known employees over a period. Where, however, an employer has to appoint to new roles after a re-organisation, the employer's decision must of necessity be forward-looking. It is likely to centre upon an assessment of the ability of the individual to perform in the new role. Thus, for example, whereas Williams type selection will involve consultation and meeting, appointment to a new role is likely to involve, as it did here, something much more like an interview process. These considerations may well apply with particular force where the new role is at a high level and where it involves promotion’.

Here however, Ms Barratt was applying for essentially the same job she had been carrying out previously – as such, the process was more akin to a selection process from a competitive pool. Because of this, requiring her to interview for her own job, with no consultation or appeal, was unreasonable and the dismissals were unfair.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0206_18_0306.html

Comment

Case law accepts that if an employer is looking to fill a new role, they can take a more subjective approach and consider what skills they will need as a business going forward. However, in this case the employer was simply reducing down a number of identical positions and should have applied selection criteria to those in the roles. By appointing externally this essentially said that those currently in the role were not good enough and so was more a capability issue which should have been addressed by the employer.

Employers should never take into account capability issues in a redundancy exercise if these have not been discussed with the employee.