It is well established that when selecting from a pool of potentially redundant employees, employers are required to use objective selection criteria. How far does that objectivity extend when selecting for a newly created role?
The EAT considered this after an employer made four senior managers redundant and combined the roles into a new head of department position. The claimant was informed that his role was at risk and that he, along with his colleagues, was welcome to apply for the new role.
The claimant applied but was unsuccessful. He was interviewed and scored using ten competencies that his employer regularly used in the annual assessment process: creativity, challenge, speed, strategic focus, simplicity, self-control/empowerment, customer focus, crisis awareness, continuous innovation and teamwork/leadership. The internal candidate who was appointed to the head of department position was heavily involved in the next stage of the reorganisation which saw the creation of several new roles.
One of the roles, which the claimant felt he was ideally suited for because it strongly resembled his old job, was that of Business Region Team Leader. He and another internal candidate were interviewed for the role, using the same scoring criteria, but neither was successful. The claimant was dismissed and an external candidate was appointed.
The claimant brought a claim for unfair dismissal, alleging that the failure to appoint him to a role for which he was so obviously qualified was "engineered" so that an external candidate known to management could be appointed.
An employment tribunal found the dismissal was unfair on the basis of the consultation process and that the employer's approach to alternative employment was flawed. The employer appealed to the EAT, which upheld the appeal.
In relation to consultation, the tribunal had been critical of the fact that the claimant was informed that a reorganisation would take place and found that this constituted 'informing rather than consulting'. However, the EAT could find nothing wrong with giving information at the first stage of consultation. The tribunal had also criticised the employer for failing to tell the claimant what the selection criteria were for the new head of department job in advance of the interview. The tribunal did not explain how this affected the fairness of the dismissal, and the EAT could not see that it had.
The tribunal had been critical of the fact that the claimant had not been told at the outset what would happen if he did not get the head of department job. The EAT did not consider this necessary, it was sufficient for the claimant to receive information in stages.
The EAT also found that the Tribunal had been wrong in its approach to alternative employment, and differentiated between selecting for redundancy (which must be objective) and the selection for an alternative role. Whilst a Tribunal will want to consider how far an interview process is objective, there is no obligation on an employer to use objective criteria in the context of an interview for alternative employment.