The Employment Appeal Tribunal’s (EAT) decision in Green v London Borough of Barking and Dagenham serves as a useful reminder for employers to act reasonably at every stage of the redundancy process. This includes throughout any interview process, where employees in the redundancy pool are competing for a reduced number of new roles within the same organisation.
Ms Green was employed by the London Borough of Barking and Dagenham as a Senior Regeneration Professional. At the time, Ms Green was one of three employees performing broadly similar roles. In October 2012, there was a restructure of Ms Green's team that included the removal of the three similar posts and creation of two new roles. Ms Green and her two colleagues were then invited to compete for the new roles by completing a written test and attending an interview. Ms Green emerged with the lowest score at the end of the process and was made redundant.
Ms Green issued a claim against her employer for unfair dismissal on the basis that the recruitment process was unfair because one of the candidates had prior knowledge of the subject matter of the written test. She also claimed the following procedural failings:
- there had been a failure to consult meaningfully with her regarding the proposed redundancies;
- the redundancy selection pool was not wide enough;
- she was not considered for assimilation into another, more junior role that was available; and
- she was not offered the right to appeal the employer's decision to dismiss her.
Employment Tribunal decision
The Employment Tribunal (ET) considered that, because this was a case where candidates were applying for new roles following a reorganisation, it was akin to the facts of a previous similar case. This meant that the ET was prevented from addressing many of the usual questions of fairness that would ordinarily be considered in a redundancy situation.
As a result, the ET focused largely on whether the employer had acted reasonably during the interview process and did not consider why Ms Green had been selected for redundancy in the first place. The ET concluded that the employer had acted reasonably at the interview stage and Ms Green lost her claim.
Ms Green appealed to the EAT, which concluded that the ET had misunderstood the previous case law and therefore incorrectly failed to consider Ms Green's arguments in relation to the procedural fairness of the redundancy process as a whole. It held that, in a redundancy situation, the entire process followed should be reviewed by the ET in order to determine whether the employer acted reasonably at each stage, regardless of the method used to select the redundant employees.
What is the practical impact of this for employers?
This case acts as a reminder to employers that Tribunals will review the overall fairness of the process and will not just focus on an individual stage. In view of this judgment, employers should remember that following a fair redundancy process generally involves identifying an appropriate pool for selection; ensuring selection criteria are objective and non-discriminatory; carrying out a meaningful consultation process with potentially redundant employees; adopting an objective and fair basis for selection; considering whether alternative employment is available; and allowing the employee the right to appeal any decision that is made. Therefore, employers must act fairly and reasonably throughout all stages of any redundancy process, applying the principles set out in the ACAS Code.