Employers should operate a reasonable process in considering potentially redundant employees for vacancies in the light of "current industrial relations practice", according to a recent tribunal decision now upheld by the EAT.
Where two senior employees were at risk of redundancy and there was only one senior level vacancy, the tribunal was entitled to use its own sense of what the current industrial relations practice of a reasonable employer would be to decide that:
- there should have been objective criteria for the vacancy applied objectively to both candidates; and
- the vacancy should not have been advertised to the whole workforce until it was established that neither candidate was suitable.
Previous authority simply required employers to carry out the process of selecting for a vacancy in good faith, at most subject to some duty of care. This case goes further but may not be of universal application: it is one tribunal's view of the requirements of reasonableness in a particular situation. Different tribunals may have a different view of current industrial relations practice, particularly in relation to redundancies of more, or more junior, employees.
The case does not necessarily preclude, say, a practice of advertising all vacancies on an intranet but not considering any applications until after the potentially redundant employees have been rejected.
However, the case increases the risk of a redundancy being unfair given the unpredictability of each tribunal's view and the difficulty of challenging this on appeal. (Ralph Martindale & Co Ltd v Harris, EAT).