The EAT's decision in Green v London Borough of Barking & Dagenham highlights the need for employers to ensure they adopt a fair process on a restructuring, even when the situation is one of deletion of several roles and selection for new roles (rather than a simple reduction in roles by the application of objective criteria).

In this case the employer proposed the deletion of three posts at a certain level and the creation of two new (but similar) posts at the same level, for which the existing jobholders were to compete. The EAT ruled that the tribunal had wrongly characterised the case as one where old jobs disappeared and new ones were created, and had wrongly treated previous authority (ruling that in such cases an employer has a little more leeway in appointing the candidates it considers to be best for the job) as obviating the need also to consider whether the process was fair and reasonable as a whole.

On the facts, the case did not involve filling a newly created position, but rather a reduction from three jobs to two. However, in any event, the test is always whether the employer has acted within the range of reasonable responses. It might still be reasonable to take a forward-looking approach to determine who to keep on a simple reduction of jobs, but the assessment and interview to select the successful candidates must be fair. Further, the rest of the process must still be reasonable, including the composition of the selection pool, rights of appeal, and individual and collective consultation.