A case this month has examined the practice of selecting for redundancy by making employees compete for new roles and sacking the unsuccessful applicants. It has long been established that the selection criteria for selecting in this way, i.e. who gets a new post, are judged by a slightly different test than when an employer selects for who is redundant.
In the case of Green v London Borough of Barking and Dagenham, the Employment Appeal Tribunal have examined a tribunal judgment where the employer tried to avoid liability for a fault in the process, by arguing that the fault was in the part of the process that selected for a new post, and not in the part of the process which made the employee redundant.
In short, the employer had three employees. It made their posts redundant and invited them to apply for two new vacancies. Green complained it was unfair because the application process had a written test which the other two saw beforehand. Therefore the redundancy dismissal failed the test in section 98(4) of the Employment Rights Act.
Section 98(4) is the section of the Employment Rights Act that says that every dismissal, once the reason for it has been established, must stand up to the question “did the employer act reasonably in all of the circumstances?”. It gives the Tribunal the job of standing back and asking if every dismissal was fairly done.
The EAT in this case has made it clear that just because the failure is in the recruitment to redeployment opportunities, it does not avoid the section 98(4) test. The dismissal was therefore unfair.
The judgment can be read HERE http://www.bailii.org/uk/cases/UKEAT/2017/0157_16_1003.html