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Individual redundancy consultation maybe required where selection for new jobs via competitive interview

Makbool Javaid, Partner - Simons Muirhead & Burton

In a redundancy situation, employers sometimes decide to conduct an interview process for the jobs that will be available, be they the same, or new jobs, rather than selecting individuals from a redundancy pool to be retained or who will be dismissed. In Gwynedd Council v Barratt & Other, the EAT have reminded employers that  it may still be appropriate conduct consultation with the individuals concerned and a failure to do so could result in a finding of unfair redundancy dismissal for failure to follow a fair procedure. In this case, the employees were required to apply for either an identical job or a substantially similar job (in effect their own jobs) in a new school after their old school closed.  The EAT held that where recruitment is to the same or substantially the same role as one which the employee was doing, then the exercise may not involve “forward-looking” criteria at all, but be more akin to selection from within a pool, where consultation is appropriate. Here the claimants could have been consulted about the adoption of a procedure for dismissing staff at the school to be closed and the recruitment process for positions in the new school, but no consultation took place. Therefore, the ET was entitled to find (among other procedural shortcomings) that the employer’s approach to alternative employment, of simply requiring the claimants to apply for their own jobs, was unfair.

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