Subjective Appointment to New Roles during Redundancy Period Endorsed

28 March 2012

The Employment Appeals Tribunal has recently held that once an employee has been selected for redundancy, then the selection process for an alternative post is not an objective assessment but rather involves a more significant element of judgement on the part of the employer. In Morgan v Welsh Rugby Union a structural re-organisation resulted in the roles of two employees (Mr Morgan and Mr Schropfer) being amalgamated into a single post. Both employees were therefore potentially redundant but were invited to apply for the new post, although only Mr Morgan met the standards of the new job description. The candidates were made aware that the interview would comprise a 15 minute presentation followed by 10 questions, and each section of the interview invited a certain number of points. Mr Schropfer scored 83% and was appointed to the post despite his presentation significantly overrunning so there was no time to ask him the individual questions. Mr Morgan, who adhered to the interview format, scored only 77% and was made redundant. Mr Morgan claimed to have been unfairly dismissed by reason of redundancy on the basis that the selection process for the new role was unfair. He argued that he had been unfairly dismissed because his experience and qualifications were better than those of Mr Schropfer. He also alleged that the appointment process had lacked objectivity and fairness due to the appointment committee’s failure to adhere to the job description or to the agreed interview format. Employers will be aware that in selecting employees for redundancy the process should be objective and avoid the possibility of bias in order to reduce the risk of any potential unfair dismissal claim. However, both the tribunal and the EAT rejected Mr Morgan’s claim. The EAT held that there was a distinction between: (1) the process of selecting employees from an existing pool for redundancy, where the employer would have to base the decision on objective criteria in order to be fair; and (2) where an employer has to appoint someone to a new role after reorganisation, where the duties of the appointment were different. An employer is not bound by its job description and is entitled to assess the individual’s ability to perform the role and appoint the candidate they consider best for the job, even if this is based on the subjective views of the interviewers. The employer in this situation is simply required to act fairly and reasonably. The decision in Morgan v Welsh Rugby Union does not mean that interviews for new posts during a redundancy period can be carried out without due care. It should be noted that in this case it was important that the interviews had been conducted by an extremely qualified panel who had carried out their duties in good faith using an appropriate scoring system. – For additional information please contact: Alexandra Dean of Gepp & Sons. The above is not legal advice; it is intended to provide information of general interest about current legal issues.