| Employment Appeal Tribunal Case on Alternative Employment in Redundancy Selection |
Employment Appeal Tribunal: Morgan v The Welsh Rugby UnionBackground/Facts It is well known that in redundancy situations, where an employer is choosing between a pool of employees who are performing the same or similar roles, it assists the employer’s defence if they can show objective factors on which the selection is made. The more, in a pooling situation, employees in the pool are rated on subjective or unverifiable factors, the more likely the Tribunal can determine the selection to be unfair. An important point to note however is that the same strict objectivity does not always apply to situations where employees are applying for an alternative role and this has now been confirmed by the Employment Appeal Tribunal in its decision in Morgan v The Welsh Rugby Union. In that case the Claimant and a colleague were made redundant from their previous roles which were replaced with one amalgamated role. Both were interviewed for the new role. Despite the fact that the Claimant met the new job description and the colleague did not, the colleague was given the job. The Tribunal in the first instance found the interview process was conducted in a fair and objective manner and the dismissal was fair, notwithstanding the interview panel did not adhere to the job description and that the format of the interview substantially different between the candidates. That decision was appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal refused to overturn the Tribunal’s findings and they were satisfied the Tribunal had decided the case in accordance with section 98(4) of the Employment Rights Act 1996. Comment The situation in Morgan above confirms that where a pooling situation does not apply, because individual roles have been made redundant and an alternative position is being considered, then more subjective factors can be taken into account. Where an employer has to appoint new roles, a decision must of necessity be forward looking in considering an individual’s ability to perform the new role. Provided an employer can show they acted reasonably in coming to that decision and can put forward good reasons why they preferred one candidate over another for the new role, it will be difficult for a Tribunal to say that decision was unfair. |