Case law | What is the process when interviewing for redundancy?

The Gwynedd Council v Shelley Barrett case provides clarity on the new competitive interview process when choosing which employees to make redundant.

Due to the impact of COVID-19, many businesses are considering redundancies. Employers have a duty to consider alternatives to redundancy, including finding suitable, alternative roles. How they select who will be offered an alternative role from those who may otherwise be made redundant, is crucial. The traditional approach of using selection criteria applied in a selection matrix can seem artificial. The Employment Appeal Tribunal (EAT) has given some assistance to employers. On 3 June 2020, they held that considering the use of a competitive interview process to determine which employees should be made redundant is reasonable.

In this case, Ms Shelley Barratt and her colleague Loan Hughes were teachers working for Gwynedd Council. The Council decided to reorganise schools in the local area. This resulted in closing the school at which the Claimants were working. The Council intended to combine a secondary school with a couple of primary schools to form a new school.

Both Claimants and their colleagues were consulted with throughout the process. They were informed that staff for the new school would be selected via interview. The Claimants were unsuccessful in applying for positions at the new school, which opened at the same location as the previous school they worked at. The Claimants argued they were unfairly dismissed because of the failure to be provided with a right of appeal and because of the manner in which they were required to “apply for their own jobs”. The Employment Tribunal found that the redundancy process was unfair because there was a lack of consultation with teachers and a lack of transparency with the selection and scoring process. The Council appealed the decision.

The Claimants acknowledged they were both dismissed on the grounds of redundancy. Furthermore, they understood that having a right to appeal would not make a difference in respect of their situation. The Council did not consult with the Claimants nor did it offer to appeal against the dismissals and so, perhaps unsurprisingly, the process was considered unfair.

The EAT dismissed the employer’s appeal against findings of unfair dismissal. However, it provided the helpful elaboration that selection interviewing is particularly appropriate when the applications are not for the same or a substantially similar role.

This case is important because it enables an employer to use a selection method that is fit-for-purpose in each situation. It also allows them to avoid the artificial shoehorning of the process into a less than ideal selection method, simply because it has become the norm. Although this does not change the law as such, it provides further clarity and confirmation of existing case law.