Back in 2011 in Morgan v Welsh Rugby Union Ltd the Employment Appeal Tribunal ("EAT") held that where an employer has to fill new roles their decision making must, by necessity, be forward looking, centring on the individual's ability to perform the new role.  In that case two roles were amalgamated into one wider role and the two job holders plus a third employee were interviewed for the one new role.  Despite meeting the new job description (which his colleague did not) Mr Morgan was unsuccessful in the competitive interview process, and was also unsuccessful in persuading an Employment Tribunal that his dismissal was unfair.

The issue of competitive interview for "alternative" employment has been considered again by the EAT in Gwynedd Council v Barrett.  In this case the claimants had been dismissed for redundancy following the closure of the secondary school where they worked.  The closure was part of a larger reorganisation which involved the claimant's school and nine primary schools closing and being replaced by one new community school.  The staffing of the new school was determined by competitive interview with unsuccessful staff being made redundant.  Both claimants applied for what were essentially their own jobs but were unsuccessful.  They were not given the opportunity to make representations or appeal the decision.

 When the claimants brought their case before the Employment Tribunal the Employment Judge ("EJ") found the reason for the dismissals to be redundancy, but commented that the employer's approach was unusual as it provided no opportunity for meaningful or effective consultation.  The EJ also found the employer's assertions that the lack of appeal did not cause any disadvantage to the claimants to be "extraordinary", "ill-conceived" and "emphatically wrong".  The dismissals were held to be unfair for these reasons and also because of the manner in which the claimants were required to "apply for their own jobs".

The EAT dismissed an appeal by the employer finding the employer had made fundamental errors throughout the process.  In particular, the EAT found that there is a distinction between a redundancy process where employees were considered for alternative jobs using the "forward looking" process as in the Morgan case, and a process of consultation and selection using objective criteria.  The process being followed in this case was not reasonable because the employees had effectively been asked to apply for their own jobs and not a new post where selection based on perceived skills to do the job would be necessary.  In reality, the employer was dealing with selection for employment by requiring employees to apply for their own jobs with no consultation or appeal.  That was not reasonable. 

While this case found competitive interview to be inappropriate, the EAT is not suggesting that will always be the case.  Where the available alternative employment is genuinely a new role a competitive interview process may be used.  However, as employers start to consider making redundancies, the message to be taken from this case is that a fair redundancy procedure usually involves consultation, identifying a reasonable pool of at risk employees, application of a fair and non-discriminatory scoring system to the pool of at risk employees and the provision of an appeal.