Slot machine

A case before the Employment Appeal Tribunal has highlighted again the importance of employers following their own procedures when reorganising, writes Phil Allen.

Where on a reorganisation your policies say you will do one thing, but in fact you do something different, that is likely to render any redundancy unfair. The decision of the Employment Appeal Tribunal in Steel v Cumbria Partnership NHSFT is a reminder to all employers that redundancy and reorganisation exercises must be handled with great care and you must follow your own written procedures.

The facts

Mr Steel's role was removed from the Trust's structure as part of a reorganisation exercise. Mr Steel applied for a new available role which was substantially the same as his previous role, but as there was another displaced employee in the same position they were both competitively interviewed for it. Neither was appointed because they both scored less than 50% of the marks given at interview and the Trust said that meant they were not competent to do the role. Mr Steel said this rendered his dismissal unfair and succeeded in his claim.

The EAT have confirmed the Tribunal were right. They looked very carefully at the wording used in the Trust's own organisational change policy. That detailed document included an explanation of what would happen when someone was displaced. In common with many such procedures, particularly those used in the public sector, it stated clearly when slotting in and competitive slotting in would apply. The procedure contained no mention of the possibility of an interview panel applying a competency bar, the process was stated only as a way of deciding which displaced person should be slotted in to the alternative role.

The Tribunal concluded that the employer had failed to follow its own procedure and in imposing the competency bar had dealt with the redeployment in a way akin to a recruitment not to a slotting in process. The dismissal was unfair.

What does this mean for me?

Following your own published procedures is absolutely imperative in any dismissal irrespective of whether or not they are contractual. This can cause problems for those of you, like this Trust, who have detailed procedures around things such as organisational change. Where making decisions which will lead to the dismissal of an employee you must ensure that what you are doing is what the procedure says you can do.

Where roles are available which are suitable for displaced employees in a reorganisation, Tribunals will expect them to be filled by those at risk. There can be a temptation in a competitive interview to treat the process like a recruitment exercise but that should not be the case. Identifying whether a displaced candidate has the skills and qualifications to fill a vacant role is appropriate. However where roles have been identified as those which the available candidates can be slotted into, you cannot then reject all the internal candidates on the basis that you do not think they can do the job.

Comment

There has been a helpful trend in recent appeal decisions on redundancy allowing employers considerable lee-way to identify what is felt to be the correct pools and the right process for redundancy. Morgan v Welsh Rugby Union in particular had identified that less stringent rules apply to filling vacancies, than to the actual selection for redundancy itself.

This EAT decision is a reminder that there is a limit to this and it remains important to follow a process which is both fair, appropriate, and in accordance with what you have said you will do in the documents you make available. If in doubt on such a process always take advice.

Phil Allen is a Partner in the Employment team at Weightmans. He can be be contacted on 0161 214 0504 or by This email address is being protected from spambots. You need JavaScript enabled to view it..