Redundancy: Use of competitive interview process for new roles may be unfair
In Gwynedd Council v Barrett, the EAT upheld a tribunal’s finding that a redundancy dismissal had been unfair on the basis that potentially redundant employees had been required to apply for jobs that were the same or substantially similar to their current roles.
The Claimants were teachers whose school was to be closed as a result of a reorganisation of a school group. Therefore, they were potentially redundant. As part of the reorganisation a new school was to be opened, with a number of vacant roles which were very similar to the ones held by the teachers. Rather than pooling the teachers, applying scoring and selecting them for the new roles on that basis, the local authority required the teachers to apply for the roles via a competitive interview process, but the teachers were unsuccessful and were dismissed. The local authority also failed to consult with the teachers over the redundancy proposal, and did not offer them an appeal against dismissal. The Employment Tribunal found that their dismissals were unfair.
The EAT agreed with the Tribunal that the dismissals were unfair. It found that in certain circumstances a competitive interview process might be appropriate, such as where a new role is created following a reorganisation, and employees’ suitability for that role must be tested. However, in this case, employees were effectively asked to apply for their own jobs, and therefore pooling and scoring would have been appropriate. Had pooling and scoring been used, employees would only have been dismissed if the number of available roles was smaller than the number of potentially redundant employees, thus saving more jobs. On top of that, the local authority’s failure to consult with the affected employees was a further factor in the finding of unfairness.
This case is a useful reminder of the circumstances in which a competitive interview process is appropriate – usually in cases where the open position is new or very different to the positions currently held by potentially redundant employees. Where selection is being made for a reduced number of the same or very similar roles, pooling is more likely to be appropriate. In some cases, where the post would use transferable skills but is not entirely the same, it might be appropriate to use a “hybrid approach” where employees are scored on the basis of the skills and expertise that are relevant for the new role and interviewed to assess their potential in the areas which are new. In any of these cases, proper consultation will help to bolster employers’ arguments that the process they have chosen is appropriate.
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Lucy Sorell is an employment senior associate
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