Redundancy: EAT provides guidance on when competitive interview process can be used when considering employees for alternative employment- Gwynedd Council v Barrett

Summary

Two teachers were made redundant following the reorganisation of schools in the local area. When considering applications for alternative employment, the Respondent used a competitive interview process rather than a selection / scoring process. The Employment Appeals Tribunal (‘EAT’) has provided useful guidance on the use of such a process.

Facts

The Respondent decided to close a number of schools as part of a reorganisation project with the intention of combining them to form a new school. The Claimants, who were both teachers, were informed that their contracts would be terminated; that staffing of this new school would be determined by an application/interview process; and that unsuccessful candidates would be made redundant. The Claimants applied for roles at the newly formed school, which was on the same site as their former school, but were unsuccessful. The Respondent therefore provided them with written notice of termination on the grounds of redundancy.

The Claimants queried the fact that they had not been given the opportunity to make representations or appeal in respect of the decision to dismiss. In response, the Respondent confirmed that the failure to allow an appeal did not cause any disadvantage to the Claimants and that the appeal would have made no difference as the dismissals were caused by the closure of their former school, which was something that no appeal panel would have been able to reverse so as to avoid dismissals.

The Claimants claimed unfair dismissal. The Employment Tribunal (‘ET’) held that the dismissals were unfair because of the failure to provide the Claimants with a right of appeal, the absence of consultation and because of the manner in which they were required to “apply for their own jobs”. The Respondent appealed.

Decision

The EAT upheld the decision of the ET that the dismissals were unfair, holding that the tribunal was entitled to find that the breach of proper process in this case was fundamental and profound.

It further provided useful guidance for employers in approaching redundancy situations where employees are considered for alternative jobs and contrasted the ‘forward looking’ approach and the process of consultation and selection/scoring. The ‘forward looking’ selection process involves the use of competitive interviews for considering redundant employees for a new post.

The EAT went onto highlight that in this case, the tribunal found that the Claimants were required to apply for “either an identical job or a substantially similar job”. Consequently, it confirmed that, ‘where recruitment is to the same or substantially the same role as one which the employee was doing, then the exercise may not involve “forward-looking” criteria at all, but something closer to selection from within a pool’.

A competitive interview process was not therefore appropriate in this case and the EAT concluded that it was not perverse for the ET to find the Respondent’s approach to alternative employment, of simply requiring the Claimants to apply for their own jobs with no consultation or appeal, was unfair.

Implications for employers

At a time when many employers are unfortunately having to consider redundancy processes, this decision provides welcomed guidance on exercising the duty to consider alternatives to redundancy.

In summary, employers can use a competitive interview process when considering redundant employees for alternative employment, provided you are appointing to a new post. The alternative employment should not be for the same or substantially similar job to the role being made redundant. In this situation, a process of consultation and selection using objective criteria is advisable.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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