The Council needed to downsize its Youth Service Department. Instead of using the traditional method of selecting for redundancy from existing staff, all employees in the department were invited to apply for a new role in the restructure. The two claimants in The Council of the City of Newcastle Upon Tyne v Ford were dismissed for redundancy following an appeal, after failing to secure a new role.
The recruitment process, which was agreed with the trade union, involved interviewing the internal candidates first, after a consultation exercise. The interviews were conducted by a panel made up of employer representatives and one specialist external member. Prior to interview each candidate had been offered interview training but that offer was declined by the claimants.
At interview each candidate was asked the same six questions, for which model answers had been prepared. Out of five candidates only one was successful. In an internal e-mail one of the panel members may have inadvertently given the game away by commenting that they were "disappointed at the outcome as it was much lower than we had anticipated".
The Tribunal found that the dismissals were unfair, primarily because although the Council had told the internal candidates that selection would be by interview, they had not explained that it would be by interview only – no account would be taken of their expression of interest letter nor any knowledge gained by the panel in their previous dealings with the candidates unless it was spelled out by the candidate at interview. As a result, the Tribunal concluded, the claimants failed to sell themselves at interview and so did not have a fair opportunity to save their jobs.
The EAT dismissed the appeal. Despite a strong argument that the Tribunal had crossed the line into substituting its view for that of the employer, and a comment by the EAT that they may well have reached a different conclusion on fairness, they were unable to say that the Tribunal's decision was one which they could overturn.
This decision reinforces the point that although employers operating a "selecting-in" redundancy procedure are entitled to appoint the person they consider to be the best candidate for a newly created role, selecting someone for redundancy still needs to be clearly shown to be an objective and fair process.