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Redundancy - Competing for New Roles

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Is the application of the s.98(4) test modified in the case of redundancy dismissals where employees must compete for newly-created posts following a restructure?

No, held the EAT in Green v London Borough of Barking & Dagenham.

The Claimant had been dismissed for redundancy. She had scored the lowest of the three existing jobholders at her grade in an internal process through which the three jobholders competed for two newly-created posts following a restructure. Before the employment tribunal, the Claimant alleged, among other things, that the portion of the recruitment process which had comprised a written test was unfair as one of the other candidates had had prior knowledge of the test subject and that her appeal against dismissal had not properly considered this and other matters she had raised.

The employment tribunal had held that this was not a case where it needed to determine the fairness of the Claimant’s dismissal by applying the guidance laid down in Williams v Compair Maxam [1982] IRLR 83, because the question was not why the Claimant had been selected for redundancy but why she had not been appointed to one of the remaining positions and as a result, the Claimant’s case was more akin to Morgan v Welsh Rugby Union. In Morgan, the EAT had distinguished Williams on the basis that appointment to new roles after a reorganisation may involve a substantial element of judgment on the part of the employer. The employment tribunal in the instant case had apparently considered this to mean that it was prevented from addressing many of the questions which obviously arise under s.98(4) such as the composition of the selection pool and the genuineness of any appeal.

The EAT held that the employment tribunal had wrongly elevated Morgan to a rule of law, when Morgan itself makes clear that it directs employment tribunals back to s.98(4) unvarnished. At all times, when employment tribunals consider dismissals, the touchstone is s.98(4). They must review the decisions made and the processes followed and determine whether each stage fell within the range of reasonable responses.

Finally, the EAT made clear that an employment tribunal’s Reasons should always follow a clear structure (which those it had considered in this case had not) separately setting out – preferably with the use of appropriate headings – the issues the employment tribunal had to address, its findings of fact, a summary of legal principles and the parties competing arguments, and then the employment tribunal’s conclusions, properly addressing the questions it is charged with determining.