In a recent case, Samsung Electronics v Monte-D’Cruz, the Employment Appeal Tribunal (EAT) looked at the fairness of an employer recruiting external candidates to fill vacancies in preference to redeploying existing employees whose positions had been made redundant.
In this case the company was undergoing a restructure. As a result, a number of roles, including that held by Mr Monte-D’Cruz, were made redundant. As part of the restructure the company had created a number of new roles and Mr Monte-D’Cruz and a colleague were invited to apply for them. At the interview they were assessed against a number of competencies and in order to be considered for appointment to the role they had to score a minimum of 75 points. Neither Mr Monte-D’Cruz nor his colleague achieved this, and the company appointed an external candidate.
Mr Monte-D’Cruz claimed unfair dismissal and won on the Employment Tribunal. However, the EAT overturned this. They held that when an employer was interviewing for a vacancy, as opposed to selecting for redundancy, it was entitled to use subjective criteria. They expressly stated that interviewing would inevitably include an element of judgement by the employer.
As part of a fair redundancy process, employers have always had to look to see whether there are any suitable alternative vacancies for an employee at risk of redundancy. In this case the EAT have probably made it a bit easier for an employer to reject someone at risk of redundancy for an alternative role on the grounds of their ability, rather than their qualifications and experience. However, if an employer does go down this route it will be risky, especially if there is only one vacancy and one employee at risk of redundancy. In this particular case there were two people at risk of redundancy who applied for the new role, and the employer was therefore bound to have had some form of selection exercise.
As always, these sorts of cases are very fact specific, and we recommend you always seek advice in handling redundancy situations, particularly where you are thinking of appointing an external candidate in preference to an internal one.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or [email protected].