Redundancy: Using an interview process for selection
As an employer, may you reasonably use a competitive interview process when considering potentially redundant employees for alternative employment?
In the case of Gwynedd Council v Barrett, the Employment Appeal Tribunal (“EAT”) has said “Yes, you can”. This particularly applies where employees are applying for a new role that is not the same or similar to the one that they have been doing in your business. But see Odin HR’s Warning below:
In the above case, the teachers at risk of redundancy were asked to apply for almost the same job that they were doing already. It was not a “forward looking” interview selection process for a new post. Importantly, there was no selection/scoring process on their performance; and no redundancy consultation was held alongside the interview process; neither were they given the normal right of appeal against redundancy dismissal.
Based on this, the EAT dismissed the employer’s appeal against findings of unfair dismissal and the previous employees succeeded in their unfair dismissal claim.
This case tells us that simply requiring employees at risk of redundancy to apply for their own jobs and go through a selection interview, with no other process i.e. consultation on the redundancy proposal and no right of appeal against their redundancy dismissal is likely to be found to be an unfair process at Employment Tribunal. This could result in your former employee making a successful claim of unfair dismissal against your business. A selection interview in itself, for the same or a similar role, is not going to be enough on its own.
So what should I do to help me decide fairly which employees to select for redundancy?
*ACAS advises that it’s a good idea to use selection criteria to help you choose which employees to make redundant. You should base the criteria on:
- Standard of work;
- Skills, qualifications or experience necessary;
- Attendance record. This must be accurate and may not include absences relating to disability, pregnancy or maternity. (Ask Odin HR for further guidance on this.)
- Disciplinary record.
*ACAS stands for the Advisory, Conciliation and Arbitration Service. They are an independent public body that receives funding from the Government to work with millions of UK-wide employers and employees each year to improve workplace relationships.
As an employer, you should be aware that ACAS have a number of “Codes of Practice” that set the minimum standards of fairness that workplaces should follow. Although the Codes of Practice are not legally-binding, they are used by Employment Tribunals to assess whether the employer has met the appropriate standards and to decide on relevant employee cases.
Odin HR’s Note:
Length of service as redundancy selection criteria should generally be avoided these days. It can be unlawfully indirectly discriminatory on the grounds of age (to younger employees); also, the fact that somebody has done a job for you for years does not necessarily mean that they are as good at it as somebody who has been employed by you for less time!
You should never select employees for reasons that are likely to be viewed to be discriminatory e.g. their age. Ask Odin HR which selection criteria could be considered to be unlawful discrimination.
Remember also that during the Coronavirus pandemic, you must not select employees for redundancy just because they’re shielding for medical reasons. This could be disability discrimination.
You should consult with employees at risk of redundancy directly to identify and agree selection criteria. If you can sit down with them to agree openly what skills and experience are going to be needed by your business in the future world, it is more likely that they will see your redundancy selection process as fair.
Having agreed the selection criteria, you should score all employees in your redundancy “pool” against the criteria.
Some redundancy criteria might be more important to you than others. You could therefore agree a “weighting” for each criterion that allows you to be more flexible with the scoring. For example: Are particular skills more important to your business going forward than attendance?
If you do use an interview selection process to ask employees to apply for their jobs, you should still use measurable criteria to evidence that you are selecting people for other employment in a fair way. Make sure that you combine this with redundancy consultation and an appeals process.
Remember to set up an appeal process in your redundancy plans so that employees have a chance to meet with you face-to-face to explain why they do not agree with your decision. This will help you if you need to defend an unfair dismissal claim at Employment Tribunal.