When making employees redundant, employers have to consider whether there are any suitable alternative vacancies available for them. In Samsung Electronics (UK) Ltd v Monte-D’Cruz, the Employment Appeal Tribunal (EAT) held that employers can use subjective criteria when interviewing an employee for a vacancy, unlike selection for redundancy.

Basic facts

Mr Monte D’Cruz, one of four senior managers, was told in the autumn of 2009 that as a result of a reorganisation his role would be combined with others to form one single post, Head of Sales - Print. This was followed by the creation of a number of new managerial roles.

He applied for the new post, but was unsuccessful and then applied for the new managerial role of Business Region Team Leader which he thought was almost identical to the job he had been doing,

He was one of two candidates interviewed for the post against ten competencies which the company routinely used in the annual assessment process. However, neither he nor the other internal candidate came close to the required score of 75 and the employer appointed an external candidate.

Mr Monte D’Cruz challenged the decision not to appoint him and the employer provided feedback on why he had not been selected. As he had not applied for any other vacancies he was dismissed for redundancy with effect from 31 January 2010.

Tribunal decision

The employment Tribunal said that his dismissal was unfair as the consultation process was not “fair or adequate”.

It accepted that the company had kept Mr Monte D’Cruz informed about what it intended to do, but said it had failed to consult him as required under case law. As regards his selection for redundancy, the Tribunal considered that the Team Leader role was an offer of suitable alternative employment and that the appointment process for the alternative was unfair.

In particular, it was critical of the company’s use of ten core competencies (creativity, challenge, speed, strategic focus, simplicity, self-control / empowerment, customer focus, crisis awareness, continuous innovation and teamwork / leadership) which, it said, were “nebulous” and open to subjective interpretation.

EAT decision

The EAT, however, disagreed. It said there was nothing wrong with the way the company had consulted with Mr Monte D’Cruz, not least because keeping him informed was part of the consultation process.

It had initially told him how the reorganisation would affect him in a letter at the end of October 2009 and had then told him not only what was happening, and why, but what his options were if he did not get the senior manager post.

In terms of subjectivity in the assessment process for the alternative job, the EAT said that not all aspects of performance or value lend themselves to objective measurement and that there is no obligation on an employer always to use criteria which are capable of being objectively measured, and certainly not in the context of an interview for alternative employment.

As regards the core competencies, the EAT noted that the Tribunal had not said that the basis of the assessment was unreasonable. While it might have been sensible for the interviewers to discuss what was meant by specific assessment criteria, a failure to do so will not of itself render the dismissal unfair.

Referring to Morgan v Welsh Rugby Union, the EAT held that the fairness of a decision to dismiss cannot depend on whether the minutiae of good interview practice have been observed.

The EAT said, “what assessment tools to use in an interview of this kind – which is not we repeat a redundancy selection exercise – is prima facie a matter for the discretion of the employer. If the tools used had been plainly inappropriate that might be influential in the issue of fairness but we do not believe that could be said here.”