In the recent case of Morgan v The Welsh Rugby Union, the EAT held that the principle that selection and scoring criteria in respect of redundancy situations should be based on objective criteria does not apply when employers are considering a potentially redundant employee for an alternative role. A distinction has therefore been drawn between the selection process for establishing who is made redundant and the selection process for establishing who will be offered a new role.

During a business reorganisation, Mr Morgan’s role was made redundant. Mr Morgan then claimed unfair dismissal after being unsuccessful with his application to an alternative post which had arisen as a result of the reorganisation. Two other candidates had interviewed for the role along with Mr Morgan. Although Mr Morgan was considered eligible and capable of the new role, it was given to one of the other candidates considered to be more impressive. Mr Morgan raised the unfair dismissal claim on the grounds that he was better qualified and had more experience than the successful candidate and also that the interview process deviated from the agreed format.

The EAT held that in the course of a competitive interview process, the employer can base their selection on their subjective views as to which candidate would best fulfil the role, provided that the employer acts fairly and reasonably at all times. The Tribunal will look to the reasonable test as set out in section 98(4) of the Employment Rights Act 1996 when considering whether any resultant dismissal is unfair.