Can an employer ask a redundant employee to apply for their old job? Mark Stevens examines a recent Employment Appeal Tribunal (EAT) ruling.
In Gwynedd Council v Shelley Barratt & Anor (REDUNDANCY)  UKEAT 0206_18_0306, the EAT upheld the decision of an Employment Tribunal in finding that employees were unfairly dismissed where employees were effectively asked to re-apply for their former jobs during a redundancy process.
The claimants were teachers employed by a local authority and dismissed on the grounds of redundancy following a restructuring of school services and closure of the school where they worked. A new school opened at the same location and the employees were invited to apply for jobs at the new school. The at risk employees were told that, if their applications were not successful, they would be made redundant. The claimants applied and were interviewed but their applications were unsuccessful. They were not offered the opportunity to appeal against their dismissal and the employer did not consult any further.
The claimants made a claim of unfair dismissal against the local authority and the Employment Tribunal (ET) found that the dismissals were unfair because of:
- the failure to provide the claimants with a right of appeal against their dismissals;
- the absence of consultation on the employer's proposals; and
- the manner in which the claimants were required to apply for their own jobs.
Employment Appeal Tribunal decision
The Respondent appealed against the ET's decision arguing that it had erred in its approach to fairness applying the rules too rigidly in the employer's particular circumstances.
However, the EAT upheld the ET's decision. The fact that there had merely been a communication of the local authority's decisions without any consultation at all and the absence of an appeal were determining factors that the dismissals were unfair. The EAT dismissed the appeal.
In this case, the EAT's decision demonstrates that the key question for the ET when considering a claim for unfair dismissal will always be whether an employer has acted fairly and reasonably.
In redundancy cases involving selection and scoring, issues of fairness will turn on factors such as the pool of selection, whether scoring criteria were objective and non-discriminatory, whether a genuine and open-minded consultation process was followed, and whether attempts were made to find suitable alternative employment. It is unlikely that an ET will find a redundancy dismissal fair where an employer fails to consult or offer an appeal. In relation to alternative roles, it may not be unreasonable to carry out interviews for newly-created positions which are not the same or substantially similar to the redundant roles, but is unlikely to be fair for an employer to ask at risk employees to apply for the jobs that they were previously doing.