An employer's use of new employee recruitment criteria to assess competency when selecting for redundancy has been upheld as within the range of reasonable options for an employer. However, the Employment Appeal Tribunal (EAT) expressed some reservation.
An employer selected staff for redundancy using a range of criteria including competency. The methods it used to assess competency were the same as it used when recruiting new staff.
The selected employees argued that no new roles were being created because of the redundancies, so using recruitment criteria to select which employees should be made redundant was inappropriate. For example, these methods did not involve any assessment by managers or other staff who knew the employees in the selection pool, and past appraisals were not consulted.
The employees successfully claimed unfair dismissal in the Employment Tribunal (ET). However, the EAT overruled that decision on the basis that their dismissal was fair as the methods used were within the range of reasonable options for an employer to use.
However, despite finding in favour of the employer the EAT said the methods used were "very unusual" and "elaborate and HR-driven"; they produced "outcomes that took everyone by surprise" and it could understand how the ET had come to the view "that a blind faith in process – the characteristic déformation professionelle of HR departments – had in this case led to the [employer] losing touch with common sense and fairness".
Employers should be wary of relying on criteria used when recruiting new employees to select existing employees for redundancy, particularly when no new roles are being created for those who survive the process.
Case ref: Mental Health Care (UK) Ltd v Biluan & Anor UKEAT/0248/12/SM