The claimant in Somerset County Council v Chaloner had been the deputy director of an education centre run as a business by the Council. The centre was largely dependent on business from the public sector and expenditure cuts led to a severe and sudden downturn in work. A document called "Business Case for Restructure" (BS1), dealing with senior management posts, was drawn up. Four posts, including the claimant's, were to be reduced to two. The claimant regarded one of those posts – business development manager (JD1) – as very similar to her own and although it was at a lower grade, she decided to apply for it. She was the only senior manager interested in the post and was confident she would be appointed.
But a month later, as a result of a further decline in the centre's financial position, a second Business Case for Restructure (BS2) was drawn up. BS2 extended the reorganisation to other posts, including that of another employee who, as a result, also decided to apply for the new business development manager position (now JD2).
The claimant was aware of BS2 and that others might apply for the post she was interested in. What she did not know, because her employer did not tell her, was that the job description for JD1 had been revised, in particular adding responsibilities for financial reporting. The claimant's application was rejected after competitive interviews. The other employee was appointed and the claimant was dismissed. It was only when she was preparing for her appeal, at which she argued that the job description of the new post was so close to her existing job that there was no genuine redundancy and therefore she should have been appointed without competitive interview, that she was told about the altered job description.
The Tribunal decided that the dismissal was unfair, partly because of the changed job description but also because it found that the employer had not followed its stated redundancy policy of fully analysing qualifications, skills, performance, contribution, expertise and potential savings.
The Council appealed, arguing that selecting an employee for redundancy and the process for deciding whether a redundant employee should be offered an alternative position are two different exercises and it was entitled to have a competitive interview process and to appoint the candidate it considered to be the best. This is a relatively well established case law principle but nevertheless the EAT dismissed the appeal. The EAT made the important point that although an employer's assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment, a tribunal is nevertheless looking primarily at the issue of fairness and is entitled to take into account how far the employer established and followed through procedures when making an appointment, and whether they were fair. Here, the mere fact that the differences between JD1 and JD2 enabled the other employee to become a competitive candidate did not of itself make the dismissal unfair; the point was that the claimant did not know about those differences, so when preparing for the interview she did not know the extent to which the other employee had become a competitive candidate for a role which, on the basis of JD1, was a close fit for her own.
