Claims continue to arise from the ways in which employers handle redundancies. One recent case involved a situation in which the employee affected by the proposed redundancy was genuinely in a unique role, in that he had been appointed to a position in China after having worked in the UK for some time. The dispute concerned whether the employer was under any obligation to consider UK based employees alongside the employee based in China, with a possible view to making a position available for the China-based employee by dismissing someone based in the UK, i.e. “bumping”. The employer did in fact offer a vacant part time UK-based position to the employee but he rejected this as being unsuitable and was dismissed.
The EAT agreed with the Tribunal that the dismissal was fair. As long as the employer has genuinely applied its mind to the composition of the pool (in this case a pool of one) and its decision is a logical one, the principle is that the Tribunal or the EAT should not normally interfere with the employer’s decision. There were no special factors in this case which required the employer to resort to “bumping”.
In another case an employee affected by a restructuring process challenged the employer’s decision not to appoint him to a newly created position which in the employee’s view strongly resembled his original job. The employee and another internal candidate were interviewed for it but in the end the employer appointed an external person and the employee was dismissed. In the interview process the employer used ten competencies which it normally used in its annual assessment process, some of which were subjective in nature. Overturning the Tribunal’s decision, the EAT ruled that the dismissal was fair. Although objective criteria should be applied to the members of a pool when selecting employees for redundancy, there is no obligation on an employer to rely solely on objective criteria when considering an employee for appointment to an alternative role. The EAT accepted that, as in any interview process, it is legitimate for subjective factors to play some part in the appointment process.