Selection for suitable alternative employment – can an interview process ever be fair?

Redundancies are big news at the moment. Given the impact of COVID-19 on the economy, many businesses are having to think about the best way to restructure their organisation in order to ensure its survival. One issue that commonly arises for businesses restructuring their workforce is how to manage alternative employment. Many employers have decided to use an objective scoring matrix to select employees for any available roles. However, can an employer instead use an interview process? This question was considered in the recent case of Gwynedd Council v. Barratt & Other.

Facts

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 two Claimants were working, and instead combined them to form one new school. However, instead of applying a scoring matrix to determine which teachers would be made redundant, the Council decided that the staffing of the new school would be decided by an application and interview process. Both Claimants applied for roles but were unsuccessful. The Council did not consult with the unsuccessful employees and there was no right of appeal – the Claimants were subsequently made redundant. The Employment Tribunal found that the redundancy process was unfair, because of the use of an interview process, and the Employment Appeal Tribunal (EAT) has now endorsed that decision. The EAT found there was a difference between a redundancy process where employees are considered for alternative roles using a “forward-looking” selection process, such as the competitive interview process used in this case, and a process of consultation and selection using fair and objective criteria. In this case, the Claimants were applying for essentially the same jobs that they had been carrying out previously – as such, the process was more akin to a selection process from a competitive pool. Because of this, requiring the employees to interview for their own jobs, with no consultation or appeal, was unreasonable and the dismissals were unfair.

Practical tips for employers

This will no doubt be a significant finding for employers who are currently grappling with redundancies, and who are unsure how best to go about selecting their new, rationalised workforce.

For those businesses, the key take aways from the case are:

  • Employers can use an interview process when considering redundant employees for alternative employment where that alternative employment is for a new role altogether.
  • However, interviews are unlikely to be the right approach if the roles are essentially the same as those which the employees had previously been carrying out. In those cases, the employer should identify appropriate “pools” and then select employees for redundancy using fair and objective selection criteria.
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Elizabeth Marshall

About Elizabeth Marshall