May an employer reasonably use an interview process when considering redundant employees for alternative employment?
Yes, held the EAT in Gwynedd Council v Barrett, particularly when the applications are not for the same or a substantially similar role.
The EAT dismissed the employer's appeal against findings of unfair dismissal. The Claimants were teachers who, following a reorganisation of school services, were made redundant. Rather than using a selection/scoring process, the employer used an interview process (see Morgan v Welsh Rugby Union) to consider applications for alternative employment. The Claimants were effectively applying for their former jobs in a new school on the site of their former school. There was no consultation over the proposals by the employer, with no appeal against dismissal offered, overall the tribunal was entitled to find the process unfair.
The EAT contrasted redundancy processes where employees were considered for alternative jobs using a 'forward looking' selection process e.g. by competitive interview for a new post (as in Morgan), and a process of consultation and selection (as in the well-known Williams v Compair Maxam case). The Claimants were effectively asked to apply for the same or substantially the same job, rather than a new post. The exercise was not so much 'forward-looking' but closer to a selection process from within a pool. Effectively the employer's approach to alternative employment was to simply require the Claimants to apply for their own jobs, with no consultation or appeal, and it was not perverse for the tribunal to find that unfair.
The EAT emphasised that the general principles of fairness came from s98(4) Employment Rights Act, and that guidelines from case law did not create mandatory requirements that had to apply in every case. The judgment also addressed appeals in redundancy, and elements of the case related to the particular legal frameworks in State schools.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.