Unfortunately, with the impact of COVID-19 and the temporary nature of the UK Government's Job Retention Scheme, many businesses are having to consider redundancies.
As part of a fair process, an employer carrying out a redundancy process should seek to keep the number of redundancies to a minimum. In order to do so, an employer must consider what, if any, opportunities exist to redeploy otherwise redundant employees into an alternative role.
Where a large number of redundancies are required within the same team, there may well be a number of employees who are potentially qualified for the same alternative role. In such a situation, how does an employer decide which employee should be appointed to the role?
Limitations of interview process
A recent case has confirmed that an employer can reasonably use an interview process when considering redundant employees for alternative roles, particularly when the applications are not for the same or a substantially similar role to the recently redundant one. This is not a new position in law, but a helpful reminder that an employer is permitted to carry out such a process. However, the case also emphasises the limitations on this approach.
The case of Gwynedd Council v Barrett concerned a number of redundancies which were required following a reorganisation of the school services structure. The Council, rather than using a selection and scoring process, essentially required the teachers to apply for their former jobs in the new school. The unsuccessful teachers claimed unfair dismissal in the Employment Tribunal and their claims were upheld on the basis that no fair procedure had been followed and because of the manner in which they were required to “apply for their own jobs”.
The Council appealed to the Employment Appeal Tribunal (EAT), arguing that the Tribunal had erred in its approach to the assessment of fairness, adopting too rigid an approach to the guidelines for assessing fairness.
The EAT dismissed the Council's appeal, holding that while some parts of the Tribunal’s judgment might be indicative of a rigid approach, the judgment as a whole did not suggest that the Tribunal had treated previous case law as laying down mandatory requirements that had to be applied in every case.
In holding that the way in which the Council had required the teachers to apply for their jobs was unfair, the EAT distinguished this from redundancy processes where a 'forward looking' selection processes are used, confirming that in some circumstances, competitive interview processes will be acceptable. In doing so, they made reference to previous case law which pointed to the use of competitive interviews were the post involved was a new post, requiring a slightly different skill set.
In Barrett, the Claimants were effectively asked to apply for the same or substantially the same job, rather than a new post. This is clearly distinguishable from interviews to ascertain who best could fulfil a new role. The unfairness came not from the mere fact that interviews had been carried out, but rather the employer's approach to alternative employment, which was effectively to require the Claimants to apply for their own jobs, with no consultation or appeal. On this basis, the finding of an unfair dismissal was upheld.
Other recent cases involving redundancy and appointments to new roles have suggested that employers can be more subjective in their approach to appointing to new roles than they would have to be if selecting for redundancy from existing positions by way of a pooling process.
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Redundancy processes are complex and full of potential pitfalls which employers must attempt to navigate. Given that redundancies are most commonly required to prevent a business from experiencing financial hardship, employers must ensure that all possible steps are taken to safeguard from potential claims.
Our team are experienced in handling redundancy situations across all sectors, and deal with both small and large scale collective redundancies. Please get in touch if we can be of any assistance to your business in this period.
Please contact us on 0131 247 2534 to discuss further.