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Posted 6 March 2012
by Martin Laver

Redundancy and suitable alternative employment

As part of a fair redundancy process, you are obliged to make a search for suitable alternative employment.  As part of a restructure, suitable alternative employment might come about in the form of a new post.  You can often find that several employees are competing for the same job.  In that situation, employers usually adopt a competitive interview process to ensure fairness.  The interview process then comes under scrutiny from dissatisfied employees who feels they should have been offered the job.  To what extent then can your interview process involve a subjective assessment of each candidate?The EAT has given some guidance on the point in the case of Samsung Electronics v Monte D’Cruz.  Samsung conducted a reorganisation of its print division. Mr D’Cruz was informed of the reorganisation, and that his role was at risk of redundancy. He was invited to apply for a position of Head of Sales – Print, an amalgamation of 4 head roles.   A competitive interview process resulted in Mr D’Cruz not being offered the role.  Mr Mr D’Cruz  was then invited to apply for the role of Business Region Team Leader, a post he considered the same as his existing role.  He was again unsuccessful in this competitive application process as well.

Each interview process used the scoring criteria the employees would normally find themselves assessed against at their annual appraisal.  Additionally, the interviewers had a list of questions they had prepared but they had not formulated a model answer against which they could objectively score each candidate’s response.

The Employment Tribunal were critical that the interview process involved far too much subjective assessment and so was unfair (rendering the dismissal unfair).  Mr D’Cruz was awarded nearly £70,000.  The EAT disagreed.  They found that although it should be considered how far an interview process needs to be objective, when an employer is selecting for a new role there is bound to be an element of subjectivity.   This of itself would not be render the process unfair.

What can you take from this case?  The EAT were clear that an interview process on a restructure which maximises the opportunities for objective scoring is far more likely to pass muster than one which relies on subjectivity.  However, employers are allowed to employ a degree of judgment in their assessments.


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About the author

Martin Laver

Partner and Solicitor

Partner in the commercial litigation team specialising in disputed trusts and Wills