It is always a sensitive subject – redundancy. Both for employees and employers. There are requirements which derive mainly from case law to ensure that the process of selection is a fair and objective one.
Is it possible, however, for an employer to use a competitive interview process – of the sort you might use to recruit – to satisfy these requirements? The question was recently considered in Gwynedd Council v Shelley Barratt & Other UKEAT/0206/18/VP.
The Claimants were teachers, who were all dismissed by reason of redundancy, following the closure of the school where they worked. A new school opened at the same location run by the local authority, however, they were unsuccessful in securing positions.
Staffing for the new school was determined by a process of application and review, as opposed to the more commonly seen approach of pooling, scoring and consultation. The teachers alleged this process was unfair and also denied them the opportunity to appeal the decision to dismiss; a right under regulation 17 of the Staffing of Maintained Schools (Wales) Regulations 2006.
The Employment Tribunal found against the Council and held the dismissals were unfair . They appealed to the Employment Appeal Tribunal (EAT) and argued that the Tribunal had taken a rigid approach to fairness and the need for a right of appeal. The Council was of the view that the Tribunal should have considered fairness generally as set out in section 98(4) of the Employment Rights Act 1996.
The Council argued that the redundancy was not so much a case of selecting employees from an identified pool to make redundant, but rather a case where employees are required to apply for different jobs (i.e. at a new school, albeit at the same location).
Overall, the EAT drew the conclusion that in the event that the employees to be made redundant were required to interview for a new role, substantially different to their previous roles, an interview process may be acceptable. However, where it is the case that the new roles for which employees may or may not be chosen are the same or substantially similar to the old roles (as was considered the case in this process), an interview process would likely be deemed unfair.
The Council’s appeal was therefore dismissed.
On considering the Judge’s comments, it appears more accurate to suggest that an interview process would be acceptable in circumstances of restructure, rather than redundancy. Where two or more jobs are combined, and the nature of the new role is fundamentally different to the merged occupations. In such circumstances, considering the judgement above, it may be that an employer would satisfy the requirements for fairness using an interview process over the traditional pooling, scoring and consultation process.
If you are considering redundancies within your business, please do not hesitate to get in contact with the Employment Team on 01254 828300 or employment@backhouses.co.uk who will be happy to assist you.