May 31, 2017

Assessing Fairness in Redundancy Dismissals

In Green v London Borough of Barking & Dagenham UKEAT/0157/16/DM, the Employment Appeal Tribunal (EAT) considered how fairness in a redundancy process should be assessed.

Ms Green was employed by a local authority (LA) as one of three employees in a similar role. As part of a process of restructuring and redundancies, it was proposed that the three roles be eliminated and replaced with two new roles. To determine which of the three employees would be appointed to the two new roles, the LA decided that it would assess them based on a written test and an interview. Ms Green scored the lowest of the three employees overall and was made redundant. She argued that the written test was unfair as one of the other employees had known about its subject matter. The LA refused her appeal.

At first instance, the Employment Tribunal held that it did not need to consider the fairness of the dismissal because it thought the question before it was why the employee had failed to be appointed to one of the new roles, rather than why she had been selected for redundancy. On appeal, the EAT found that the Employment Tribunal’s approach had been wrong and held that each step in a redundancy process (including the selection process for a new role) should be assessed for fairness in the same way, i.e., was it reasonable in all the circumstances. The EAT remitted the case to a freshly constituted Employment Tribunal to consider in light of this decision.

This case is helpful in clarifying that, although employers generally have more latitude when looking to appoint employees to new roles than when selecting employees for redundancy, the appointment process will still need to be fair and reasonable. 

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