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Unfair selection for redundancy where competition for new job not on equal footing

The EAT’s decision in Somerset County Council v Chaloner is yet another reminder for employers to follow their own procedures in redundancy situations and in particular, where the selection process involves ‘selecting in’ to new roles via competitive interviews, with those not successful being ‘selected out’ for redundancy.

Chaloner applied for a new post created in the course of a reduction in staff numbers. The Council, having provided her with a job description for the new post, changed the job description materially without informing her, and then rejected her candidacy after interviews where it did not carry out its stated policy of fully analysing qualifications, skills, performance, contribution, expertise and potential savings. The Tribunal held the dismissal to be unfair and the EAT agreed.

The EAT held that the Tribunal had applied the reasonable test under S.98(4) of the Employment Rights Act 1996 correctly and were entitled to find that no reasonable employer would have dismissed in these circumstances. The employer had not followed its own procedures when making the appointment and in doing so acted unfairly, particularly where the other candidate, Boyland, had an unfair advantage over Chaloner, because Boyland was aware of the amended job description, but Chaloner was not.

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