Where a group of otherwise redundant employees have applied for a newly created role, an employer is entitled to use its subjective judgment of who would be best for the job, provided the assessment process is fair and reasonable.

The requirement that selection from a pool for redundancy should be based on objective criteria does not apply to the process of choosing who to appoint to a new vacancy.

In deciding whether the subsequent dismissal of one of the candidates is unfair, tribunals can consider to what extent the employer established and followed a fair and objective appointment process. However, employers will be given a degree of leeway if they depart from their own internal process, provided the resulting procedure is fair and reasonable. (Of course deviating from a set procedure can also expose the employer to potential discrimination claims if those with particular protected characteristics are treated differently.)

In this case the claimant had better experience and qualifications than the successful candidate, but was less impressive at interview in the interview panel's opinion. His dismissal was fair, notwithstanding the panel's departure from their planned interview process.

The more flexible standard will not apply where an employer dresses up what is simply a reduction in roles as a restructuring, dismissing all employees doing a particular role and inviting them to apply for the remaining number of jobs as if they were new jobs. Tribunals should see through this and still apply the higher objective standard to selection. Of course there may be plenty of scope for arguing how different a role has to be to count as a new one. (Morgan v The Welsh Rugby Club, EAT)