Part of any fair redundancy dismissal is a consideration of suitable alternative employment. Often more than one candidate will be interested in an alternative position and the employer will need to decide how to determine the successful candidate. In Morgan v Welsh Rugby Union (WRU), the Employment Appeal Tribunal (EAT) considered the fairness of the process followed by the WRU to select between two potentially redundant candidates.
Mr Morgan was employed as the National Elite Coach Development Manager and Mr Schropfer as Community Rugby Coach Education Manager. Both the Claimant and Mr Schropfer faced redundancy as a result of a proposed reorganisation, which would see their respective departments merged and a new post created. A job description was prepared and required candidates to have a WRU Level 4 qualification. Three applicants applied for the post. Both Mr Morgan and Mr Schropfer were deemed to be capable candidates and were each invited to attend an interview, despite the latter having only a WRU Level 3 qualification.
The EAT was critical of the WRU's departures from its intended assessment process, including:
- the selection panel failing to include someone with a coaching background;
- Mr Schropfer's presentation going well beyond the allotted 10-15 minutes which meant there was no time for individual questions as planned; and
- the selection panel failing to award individual scores for the presentation and individual questions sections.
Nevertheless, the EAT upheld the employment tribunal's finding that Mr Morgan's dismissal was fair. This type of selection process was necessarily different from selecting for redundancy. The WRU was not bound by its job description or person specification and had not acted capriciously, out of favouritism or on personal grounds in rejecting the Claimant's application.
Impact on employers
- The EAT confirmed that the rule that selection for redundancy should be based on objective criteria does not apply in the same way when an employer is considering which potentially redundant employee to appoint to a new and different role.
- Whilst it is relevant for employment tribunals to consider how objective an interview process is, ultimately, an employer's assessment of candidates for a new role will involve a substantial element of judgement. The employer has to focus on the candidates' ability to perform the new role in the future.
- Employers should bear in mind that potentially redundant employees on maternity or adoption leave (and, from April 2011, additional paternity leave) should be offered suitable alternative employment in priority to other candidates.