Is the expedient of competitive interviewing a fair method of selection for redundancy? – the decision in Gwynedd Council v Barrett

I longed for a way to write anything in the current situation without mentioning a certain horrible virus, but…..

Business as usual?

Getting back to business as usual after the Covid-19 crisis may simply be beyond the best efforts of many businesses and redundancies may, sadly, be unavoidable. A recent decision of the Employment Appeal Tribunal (EAT) casts some useful light on what has in the past been a source of confusion and concern for employers seeking to use the appropriate and effective method for selecting from a pool for redundancy purposes.

The traditional approach using selection criteria applied in a selection matrix can often seem artificial and contrived. Trying to apply objective and measurable criteria in the modern workplace and especially for skilled and professional employees can be distinctly unhelpful.

In a sensible judgment, the EAT has given some assistance to employers trying to achieve the ‘right’ result without artificially shoehorning nuanced and sophisticated decisions into objective criteria matrices.  

Employers using an interview process for redundancy selection

The EAT held, in the case of Gwynedd Council v. Barrett, that an employer may reasonably use an interview process when considering a pool of potentially redundant employees and selecting for alternative employment, i.e. who to save from redundancy. 

The EAT provided the helpful elaboration that selection interviewing is particularly appropriate when the applications are not for the same or a substantially similar roles, which is often the dilemma faced by employers in redundancy selection matters. 

Dare I venture the observation that it ought to be axiomatic that if interviews are appropriate as means of recruiting employees in the first instance, they might also be appropriate for selecting for alternative vacancies in the context of a redundancy.

There’s rarely any note of caution and, in this instance, it is that the EAT made it equally clear that employers should be mindful of the need to ensure that they follow a reasonable redundancy process.  This is no surprise, so we can assume that conducting interviews does not obviate the need for a good consultation, fair and transparent competencies matched to the performance of the individuals in interview etc.

Why is the decision in Gwynedd Council v Barrett important?

In the Gwynedd case itself, the employees were made redundant using an interview process rather than the more common selection by scoring against the objective criteria process. As the employees were effectively applying for their former jobs in a new school on the same site it was held not to be “forward-looking” and was more akin to a selection from within a pool. 

There was no consultation and no offer to appeal against the dismissals and so, perhaps unsurprisingly, the tribunal found the process unfair. So, in this case, the employees were effectively asked to apply for the same (or substantially similar) roles as their existing roles and so in this case a selection process rather than a competitive interview process was more appropriate.

What does this mean for Employers going forward?

If, in a redundancy selection process, the employer is selecting between candidates in a pool of selection for future jobs that are not the same as the jobs that have been previously carried out by the employees in the selection pool, a competitive interviewing process will be more likely to be appropriate than scoring against selection criteria process. This is important as it enables an employer to use a selection method that is fit-for-purpose in a given situation and avoids the rather artificial shoehorning of the process into a less than ideal section method simply because that had become the norm