Where there is more than one candidate who is potentially redundant, a fair process must include a reasonable selection process for deciding upon who is to be made redundant.
Where there are a number of redundancies but new posts are being created in the organisation as a result of the redundancy/reorganisation, a fair process must be undertaken to determine which of the redundant employees will get the new post.
In a recent case, Morgan v Welsh Rugby Union, the EAT has indicated that the requirements in justifying recruitment to the new role will not necessarily be as stringent as is the case where employers are selecting for redundancy from a pool of potentially redundant staff.
In this case, the Claimant was employed as a rugby coach. His role and that of another coach were amalgamated and a new post created. Both existing roles were therefore redundant and each employee given the chance to apply for the new role. The Claimant was the more experienced coach and fulfilled all aspects of the job description for the new role. The other candidate did not fulfil all the requirements. Despite this fact, the other candidate was given the new role on the basis of a stronger performance at interview. The Claimant raised a claim for unfair dismissal.
The EAT, agreeing with the majority at the employment tribunal, found that the dismissal was fair. The EAT found that the position was different from a redundancy process where the employer must select staff to be made redundant from a wider pool. In that case, the employer is duty bound to stick to the set criteria for selection, and any departure from this is likely to be unfair. In the present case, there is no such selection. Instead, a new role is being created and it is order for the employer to use an interview process to determine who gets that job (even if the less qualified candidate on paper is selected).
This is not to say that the employer has carte blanche to select the preferred candidate. The interview process itself should be transparent and fair, but as the EAT pointed out, selecting a candidate for a new role is likely to involve a substantial element of judgment on the part of the selection panel and the courts should be slow to interfere with that choice unless it is seen to be clearly unfair or discriminatory.