A Council’s failure to make it clear that internal candidates for new posts would be judged solely on their performance at interview led to findings of unfair dismissal which have recently been upheld on appeal. The decision is a reminder for employers conducting downsizing exercises to make sure employees competing for new jobs understand exactly how their applications will be assessed.

The claimants’ head of department said in evidence that their interview scores were much worse than she had expected. That lead to a finding by the tribunal that a key reason for their particularly poor performance was their failure to appreciate the need to sell their previous experience, given that the panel would only be taking what was said at interview into account. While the EAT admitted that it might have come to a different conclusion had it been in the tribunal’s shoes, it had been entitled to conclude that this failure in communication had resulted in the redundancy dismissals being unfair.

The tribunal’s decision was easier to defend because it had not concluded that the claimants would definitely have been appointed. In both cases the compensatory award had been reduced to reflect that fact that they might still not have landed a job in the new structure, even if a fair procedure had been followed.

The decision must have been particularly disappointing to the Council because it had agreed the selection process with the union, and had even offered interview training to candidates who were applying for new jobs. However, it does illustrate the potential pitfalls of selecting for redundancy without taking into account previous experience. In such cases, employers need to make it particularly clear to internal candidates that they will be assessed in the same way as external candidates, with no account being taken of the panel members’ personal knowledge of their previous experience.