Redundancy and Suitable Alternative Employment

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

When, after a re-organisation, a redundant employee is invited to apply for a newly created role, can the employer appoint "the best person for the job", even if that involves a degree of subjectivity?

Yes, says the EAT (Underhill P) in Samsung Electronics v Monte D'Cruz.

Samsung re-organised its print division. The claimant was one of three Heads of Department who were informed their roles would be abolished and merged into a new, single, position of Head of Sales. The claimant unsuccessfully applied for this post. He was assessed on a presentation and scored against competencies normally used in the annual appraisal process. He then unsuccessfully applied for a more junior role arising out of the re-structure. An outside candidate was eventually appointed.

The employment tribunal found the dismissal unfair because of inadequate consultation and because the criteria for selection for the new roles were too "subjective".

The EAT reversed the tribunal. As to the quality of consultation, the tribunal had erred by substituting its own view for that of the employer. As to the arrangements regarding suitable alternative employment, a tribunal should certainly consider how far an interview process was objective. But although, said the EAT, "subjectivity" in redundancy cases was often seen as a "dirty word", where a post has disappeared and the employer was selecting for a new role, some subjectivity was inevitable. The tribunal should bear in mind the views of the EAT in Morgan v Welsh Rugby Union [2011] IRLR 376 that "an employer's assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment" (per Judge Richardson).