Redundancy and the Selection Criteria for Alternative Posts

In Samsung Electronics (UK) Ltd. v Monte-D’Cruz, the Employment Appeal Tribunal (EAT) has given guidance on the principles that apply to the process for deciding whether a redundant employee should be offered an alternative position within the organisation.



Keith Monte-D’Cruz was one of four senior managers at Samsung Electronics (UK) who reported to the Head of Print. In Autumn 2009, the company initiated a two-stage reorganisation of the Print Division. Stage one involved combining the jobs of the four senior managers into a single position – Head of Sales Print. Mr Monte-D’Cruz and the other affected managers were informed of the changes and told that their jobs were potentially at risk. Mr Monte-D’Cruz was invited to apply for the Head of Print role, which would be filled after a two-week consultation period. His suitability for the post was scored according to the 10 competencies used by the company in its annual assessment process. Mr Monte-D’Cruz did not get the job.



In stage two of the reorganisation, Mr Monte-D’Cruz applied for a new managerial role, reporting to the newly appointed Head of Sales Print, which he believed was almost identical to his previous job. There was one other internal candidate and scoring was on the same basis as before. In the event, Samsung engaged someone from outside the company on a consultancy basis and Mr Monte-D’Cruz was dismissed for redundancy.



Mr Monte-D’Cruz claimed unfair dismissal. The Employment Tribunal (ET) upheld his claim because it found that the consultation process undertaken at stage one of the reorganisation was not fair or adequate and that there were flaws in the selection process used to fill the new position because the criteria used were ‘nebulous’ and liable to ‘subjective’ interpretation.



Samsung appealed against the ET’s decision and won.



The EAT held that the ET’s finding of unfairness could not be sustained as the actions of Samsung during the initial stages of the reorganisation had constituted good consultation practice. This was not a situation where one or more staff members were being selected for redundancy but one where Mr Monte-D’Cruz’s job was being abolished and he was being given the opportunity to apply for a different job.



With regard to Samsung’s failure to appoint Mr Monte-D’Cruz to the new managerial post, the relevant principles that apply in such circumstances were set out in Morgan v Welsh Rugby Union, in which Judge Richardson made it clear that there was no specific rule that the criteria used must be objective. The procedures to be adopted and the criteria to be applied when selecting an employee for redundancy cannot be transposed to the process of deciding whether a redundant employee should be offered an alternative position. In the latter situation, the ET is entitled to consider how far an interview process was objective, ‘but it should keep carefully in mind that an employer’s assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment’. In the EAT’s view, Samsung had not acted unreasonably in offering the post to someone it judged to be better able to fulfil the role. ‘Subjectivity’ is often used as a ‘dirty word’, but 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 that are capable of such measurement in the context of an interview for alternative employment.



In this case, there was no evidence that the failures in the process identified by the ET had led to substantial unfairness to Mr Monte-D’Cruz. What assessment tools are to be used is prima facie a matter for the discretion of the employer, provided those chosen are not plainly inappropriate. In this case, the ET had fallen into the trap of substituting its own views as to what criteria should have been used. Had it followed the approach set out in Morgan, it would have found that any flaws in the recruitment process were not serious enough to render the dismissal unfair.



The appeal was therefore dismissed.