22 March 2019 - Article
In Morgan v The Welsh Rugby Union, the Employment Appeal Tribunal (‘EAT’) made an important distinction between the established, objective process employers should adopt when selecting employees for redundancy, and the less stringent procedure they are permitted to follow when considering potentially redundant employees for a genuinely new role. In both cases the employer must act reasonably to avoid a claim for unfair dismissal but, when selecting for a new role, an employer has more latitude to exercise judgment about which candidate would best perform the role.
Selecting employees for redundancy
Most employers are familiar with the steps they need to follow when selecting for redundancy. In brief:
- warn affected employees in advance about potential dismissals;
- be fair, objective and non-discriminatory;
- consult with employees in good faith, using objective selection criteria which are applied fairly; employers should refer to a range of different attributes such as relevant skills, knowledge of business, technical knowledge, client relationships, future potential, attendance, disciplinary record and length of service;
- consider ways to avoid or reduce redundancies by looking at suitable alternative employment.
In order to comply with this selection process, employers often devise a scoring system so that employees are scored on various selection criteria and then put at risk of redundancy based on their score. The case of Morgan looked at the selection process outlined above in the context of two potentially redundant employees who were applying for a new role. It was recognised that in the context of selection for a new role, although the process should be objective, there would also be a substantial element of personal judgment involved.
Mr Morgan was employed by the Welsh Rugby Union (WRU) as a national elite coach development manager. Mr Schropfer was employed as a community coach education manager. A new post was created called National Coach Development Manager and the two employees were put forward for the job. A job description with a person specification was provided which stated that the individual should be qualified to at least WRU Level 4 and have experience of developing elite coaches. Mr Morgan was more qualified and had more relevant experience than Mr Schropfer. However, after an interview and presentation selection process, the committee unanimously appointed Mr Schropfer to the new role on the basis that his very clear vision for coaching development made him the best candidate for the job.
Mr Morgan claimed unfair dismissal, arguing that the appointment process lacked objectivity and fairness. The EAT considered whether this was the appropriate test to follow where an employer is considering employees for a new role. It concluded that at the stage of appointment to a new role, employers were not bound to follow an objective redundancy selection process as outlined above although their decisions must not be capricious or based on personal favouritism. Rather the process was more like interviewing candidates for a new job and an element of judgment could be used in assessing who would best perform the role. Interview processes and other techniques, such as presentations, rather than matrix scores, were justifiably used.
The process will still need to be reasonable in accordance with s98(4) Employment Rights Act, meaning that employers will still have to show that the process followed was reasonable in the circumstances. In practice, this means that employers will have to show evidence that the
role is a genuinely new role and that there has been no bias or favouritism in selecting one candidate over another. Employers should keep records backing their decision process including details of the new role, a job description, interview questions and responses, and the reasons
for the selection of a particular candidate over others. It would also be prudent to be as open as possible with candidates about the selection process and to ensure that interviewers are experienced at interviewing and can stand up to questioning about the reasons for their selection, if their decision is disputed at a later date.