Consideration of alternative employment is a part of a fair redundancy procedure and it is common practice for employees to be asked to attend interviews for alternative jobs, competing against other internal, and sometimes external, applicants.
In Samsung Electronics (UK) Ltd v Monte-D’Cruz the Employment Appeal Tribunal (EAT) overturned a finding of unfair dismissal by an employment tribunal, which held that a redundancy was unfair, in part because the criteria used for selecting candidates for an alternative job were subjective and “nebulous”. The competencies against which applicants were assessed were “creativity, challenge, speed, strategic focus, simplicity, self-control/empowerment, customer focus, crisis awareness, continuous innovation and teamwork/leadership”. The tribunal thought it would have been better to select by reference to a person specification, and that past performance was not properly taken into account.
The EAT considered that in doing so, the tribunal stepped over the line between expressing an opinion about good practice and substituting its own decision for that of the employer, and went too far in criticising what had in fact been a reasonable approach where the employer assessed suitability for the alternative job by applying identified criteria and making a “systematic evaluation of his suitability in good faith”.
Subjectivity is difficult to avoid completely, when selecting employees for alternative employment – as President of the EAT Underhill remarked:
the fact is that not all aspects of the performance or value of an employee lend themselves to objective measurement, and there is no obligation on an employer always to use criteria which are capable of such measurement, and certainly not in the context of an interview for alternative employment.
That said, relying wholly on subjective criteria would be a risky business at any stage of a redundancy process. We can advise you concerning the correct procedure to follow at all stages of the redundancy process. Call us on 08000 832 832 or send an email to firstname.lastname@example.org.