The background to Green v London Borough of Barking & Dagenham was the Council's programme of restructuring and redundancies. This included a re-organisation of roles in the regeneration division, involving the deletion of three senior jobs and the creation of two similar posts. The claimant, who held one of the three jobs, was a long-time trade union member and steward and she took the lead in the union's campaign against the cuts.

Following a job matching exercise, there were tests and interviews for the two new roles. The claimant scored lowest of the three, was not appointed to either and was made redundant.

If the principal reason for dismissal had been that she had taken part in trade union activities this would make it automatically unfair. However, her claim of automatic unfair dismissal was rejected, the Tribunal saying that her redundancy was not influenced, directly or indirectly, by any hidden agenda related to her trade union activities. Her claim of unfair dismissal was also rejected by the Tribunal. The claimant appealed.

The EAT allowed the appeal, in part. As regards the automatic unfair dismissal claim the EAT agreed that the reason for the claimant's dismissal was redundancy and not related to her trade union activities. However, the EAT did allow the appeal on the unfair dismissal claim.

In rejecting her claim, the Tribunal had said that, based on the decision in Morgan v Welsh Rugby Union, the question was not why the claimant had been selected for redundancy as much as why she had not been appointed to one of the remaining positions.

Williams v Compair Maxam back in 1982 established the principle that, in order to be reasonable, redundancy selection criteria should be objective and capable of independent verification. Morgan v Welsh Rugby Union in 2011 tweaked this a little – the EAT found that the principle did not extend to deciding which potentially redundant employee should be appointed to an alternative vacancy; the employer is entitled to appoint the candidate it considers to be best for the job, provided it acts fairly and reasonably.

The EAT in Green v London Borough of Barking & Dagenham held that the Tribunal had incorrectly applied Morgan. It can apply where there is an appointment to a newly created post, but not where, as here, there was a straight reduction of three jobs to two. Also, because the Tribunal had not approached it as a simple redundancy case, it had failed to look at how collective and individual consultation impacted on fairness.