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It is now common practice for employers to select employees for redundancy based on their performance at an interview. Often this process appears to be similar to a recruitment exercise, with the employer selecting those who will be offered a place in the new structure.

In Gwynedd Council v Barrett the employees concerned were teachers who were made redundant when the local authority closed the secondary school at which they were employed and opened a new school – on the same site – accommodating both primary and secondary pupils. They applied for posts at the new school but, following a selection process based on an interview, were unsuccessful and made redundant.

An Employment Tribunal found that their dismissals were unfair. One reason for this was that the employees had been offered no appeal against the decision to dismiss them despite the specific requirement in Regulations covering the staffing of maintained schools in Wales that the right to appeal should be given. The Tribunal also based its decision on a lack of consultation throughout the process and the fact that the change in school structure did not necessarily have an impact on their own roles, so the employees were essentially being made to apply for jobs that they already had.

The EAT upheld the Tribunal’s decision. On the issue of a recruitment-style interview the EAT said that the Tribunal had been entitled to find that the employer’s approach had been inappropriate in this case. This was not a ‘forward-looking’ process where the new roles were substantially different from the old ones and the employer had to consider how suitable the employees were to be recruited to them. It was much more akin to a selection for redundancy from an available pool of employees. The Tribunal had been entitled to stress the need for objective selection criteria and proper consultation.

This case does not mean that employers should avoid the use of interviews in redundancy selection exercise. It is important however not to lose sight of the underlying reality of the process. It is the fairness of the dismissal that will be scrutinised in any unfair dismissal claim. Employers will need to show the criteria on which the employee was selected for redundancy and the basis on which they were assessed. Performance in a job interview with no proper assessment of the employee’s actual performance at work is unlikely to be sufficient.   

Find out how we can help.  Our partner, Jon Dunkley, heads the Wollens specialist Employment Department.  Contact him today for an informal chat, without obligation on 01271 342268 or via email at jon.dunkley@wollens.co.uk.