Redundancy interview processes
We explore whether an interview process can be a fair way to consider redundant employees for alternative jobs.
Legal guidance for employers running a standard redundancy process makes it clear that typically warnings of redundancy (‘at risk’ letters), consultations, establishing selection criteria, selecting in accordance with those criteria and considering alternative employment are all fundamental elements of a fair dismissal process. However employers sometimes choose to ask those at risk to formally apply or otherwise interview for the vacancies.
In a recent Employment Appeal Tribunal (EAT) case it was found that it will only be fair for an employer to use an interview process to determine who should be offered alternative employment (as opposed to scoring against objective selection criteria) in limited circumstances.
This case focused on teachers at a school in Wales who were subject to a competitive interview process to consider applications for alternative employment. The teachers brought a claim against the council for unfair dismissal following a reorganisation at the school which left their jobs redundant. The school used an alternative procedure for the redundancy whereby an interview process was used as opposed to a selection and scoring process, which is far more commonly used. The practical result was that the teachers were essentially applying for their previous jobs in a new school on the same site as the old school. The school failed to carry out a consultation and did not offer the teachers a means to appeal the redundancy.
The employment tribunal found the teachers had been unfairly dismissed. In this case, the requirement to apply for a role that was the same as their current job, together with the lack of consultation and no appeal process, was deemed be unfair by the tribunal and the EAT agreed.
The EAT clarified that where an employer has to appoint to new roles after a re-organisation the employer’s decision must of necessity be forward-looking. Such decisions are therefore likely to centre upon an assessment of the ability of the individual to perform in the new role (as opposed to assessing them against criteria based on their time in their current role), which can therefore justifiably be carried out via an interview process.
However the point to note for employers is that such an approach would not be considered fair when the roles available are materially similar to those currently carried out by the employees that are at risk of redundancy. In such circumstances it is appropriate to carry out a scoring exercise based on objective selection criteria, with genuine consultation and the right to appeal.