Case update (3):  Redundancy – Careful of selection by interview

waiting for interview

Summary:  Can an employer reasonably rely on just an interview process when considering redundant employees for ‘alternative employment’ which is essentially the same as their current role?

No, says the EAT in Gwynedd Council v Barrett, available here.

Facts:  The employer, Gwynedd Council, decided to implement a reorganisation of the schools in the local area. It closed a number of primary schools, including those at which the employees, two teachers, were working.  The Council instead combined the primary schools to form one new school.

The combining of the primary schools meant that a number of teachers would need to be made redundant.  However, instead of applying a scoring matrix to select teachers for redundancy, the Council decided that the staffing for the new school would be decided by an application and interview process. Both employees applied for roles but were unsuccessful.

The Council did not consult with the unsuccessful employees and there was no right of appeal – the employees were subsequently made redundant.

The employees brought Tribunal claims for unfair dismissal.

Tribunal decision

The Tribunal found that the redundancy process was unfair, because of the use of a competitive interview process and lack of any consultation with the teachers who were not successful.

The Council appealed the decision.

EAT decision

The EAT upheld the Tribunal’s decision. The EAT considered that this redundancy process was unfair because the employees were effectively asked to apply for the same or substantially the same job, rather than a new post.  The EAT distinguished this from a redundancy process where interviews maybe used to decide who best could fulfil a new role. The unfairness was not because of the fact that interviews had been carried out, but rather the employer’s approach to alternative employment, which was effectively to require the Claimants to apply for their own job.  This was more akin to a selection process from a competitive pool, with no consultation or appeal, which was unfair.

Implications:  This case is a good reminder that a fair redundancy will normally require the employer to identify a reasonable pool of at risk employees and fairly score the individuals against fair selection criteria. It will not be fair instead to require individuals to interview for what are essentially the same jobs as those they are already doing.

However, it may be reasonable to carry out interviews for newly-created positions which are not the same or substantially similar to the redundant roles i.e. genuinely new posts.

In any event, whether the alternative employment roles are newly-created or the same, it will usually also be a requirement of fairness to consult with the employees over the process and to provide a right of appeal.

waiting for interview