Morgan v The Welsh Rugby Union
When deciding whether a dismissal for redundancy is fair, tribunals have to apply certain objective criteria. In Morgan v The Welsh Rugby Union, the Employment Appeal Tribunal (EAT) said that it was not appropriate for tribunals to apply the criteria set out in Williams v Compair Maxam when considering new roles created following a reorganisation.
Mr Morgan had worked for the Welsh Rugby Union since 1996, most recently as the national elite coach development manager. He worked alongside a community coach, Mr Schropfer, whose job was to develop coaching at lower levels of the game.
As a result of a reorganisation in 2008, both posts disappeared and a new, single post of national coach development manager was created. Both men were interviewed for the job, but Mr Schropfer was appointed.
Mr Morgan claimed that the selection process was unfair in that the interview panel (which did not include a coach) did not stick to the job description nor the format for the interview.
He argued that Mr Schropfer was less qualified for the job, had much less experience of training elite coaches and, because his presentation overran, had not been asked individual questions to the same extent that Mr Morgan had been.
The tribunal rejected his claim of unfair dismissal, saying that although Mr Morgan’s application appeared strong on paper, the interview itself had played an important part in the selection process.
It was satisfied that the make-up of the interviewing panel was fair and reasonable, and although the panel had not strictly adhered to the process as originally envisaged, the interview had been conducted fairly. Overall, it concluded that the selection process was objective and fair.
Mr Morgan appealed, arguing that the tribunal had ignored the third and fourth principles set out in the case of Williams v Compair Maxam (1982), requiring employers to establish criteria for selection that can be objectively assessed; and to ensure that the selection is made fairly in accordance with them.
EAT decision The EAT, however, disagreed, saying that the redundancy selection criteria set out in Williams only applied to employers selecting employees for redundancy from within an existing group. They did not apply to new roles being filled following a reorganisation when the employer’s decision “must of necessity be forward-looking .... [and] likely to centre upon an assessment of the ability of the individual to perform in the new role”.
In these circumstances, tribunals had to apply section 98(4) of the 1996 Employment Rights Act to consider how objective the interview process had been, while bearing “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 this case, although the tribunal had acknowledged that it would have been better had the panel stuck more carefully to the intended process, overall it had found the process to be objective and fair.
The EAT said that, when making an internal appointment, employers are not required to adhere to the job description or person specification; they are entitled to interview internal candidates even if they don’t precisely meet the job description; and they are entitled to appoint a candidate who does not precisely meet the person specification, but whom they think is capable of doing the job.
A typical redundancy selection procedure involves identifying the pool of employees, agreeing objective selection criteria with the recognised union and fairly selecting employees from the pool using the agreed criteria. Employers should then seek to see whether instead of dismissing those employees they can offer them alternative employment.
It is increasingly common to see employers departing from this approach by reorganizing the work, creating new jobs and then competitively recruiting from the pool of affected employees. This case highlights the comparative freedom which employers have if they adopt this approach.
But it's important to note that they cannot follow this approach in every case. If they are simply reducing the number of employees, rather than deleting job roles and creating new positions, then they should follow the well established redundancy selection procedure, which provides more safeguards for union members.