Last month’s Employment Appeal Tribunal decision addresses what should happen if an employee selected for alternative employment resigns before the redundancy notices take effect. Is the employer obliged to re-offer the vacancy to an employee who has previously been selected for redundancy? The answer is no, if there is good reason to believe that the employee who failed to make the grade first time round is unsuitable for the new post.
This case was about the re-organisation of a borough council’s IT department. Four employees had to apply for three new jobs. The new posts were assessed as between 70 and 80 per cent similar to the existing jobs. Under a selection procedure agreed with the union, which involved a combination of an application form, interview, and assessment of past performance, the claimant came out bottom. She was therefore selected for redundancy. However when she discovered that one of the three successful candidates had resigned before taking up the new job, she brought proceedings for unfair dismissal.
The EAT backed the employment tribunal’s conclusion that the council had acted reasonably in concluding that the claimant was unsuitable for any of the new posts, even though no “passmark” had been set for the selection process. The ET had concluded that the council’s decision would have been the same even if there had only been three internal candidates for the new posts at the outset. Her marks had been significantly lower that those of the other candidates, and the council had been entitled to conclude that these shortcomings could not be overcome by additional training combined with a trial period.
This decision is a useful illustration of the flexibility that employment tribunals are prepared to give employers when assessing potentially redundant employees for suitable alternative employment. The employer in this case was undoubtedly helped by having agreed the redundancy procedure with the trade union. That is not to say the procedure could not have been improved, particularly by making it clear that even in the absence of competition for ring-fenced new posts, internal candidates would not be selected unless assessed as capable of doing the new job, allowing for a trial period and additional training.