Labour & European Law Review Weekly Issue 349 11 December 2013
When considering a claim for unfair dismissal, tribunals have to consider whether the employer acted reasonably, among other things. In Somerset County Council v Chaloner, the Employment Appeal Tribunal (EAT) confirmed that tribunals can take into account the extent to which the employer established and followed through procedures when making an appointment and whether they were fair.
Ms Chaloner started working as the deputy director of a Council-run adult education and conference centre in November 2009. However, due to public sector cuts, the centre suffered a serious downturn in income the following year.
Mr Griffiths, the Council’s critical commercial change manager drew up a restructuring plan in November 2010, reducing the number of senior management posts from four to two. Ms Chaloner decided to apply for the post of Business Development Manager (BDM) as the job description was very similar to her old job, although it was at a lower grade.
Mr Griffiths then produced a second restructuring document over the Christmas period as things were worse than he first thought. This involved more redundancies, including the post of Ms Boyland, the financial officer. He also changed the job description for the post of BDM, adding an entirely new section on financial control and administration without telling Ms Chaloner.
It was not until Ms Chaloner appealed the decision to give Ms Boyland the job that she realised the job description had been changed. She argued before the appeal panel that it was so close to her existing job description that there was no genuine redundancy and she should therefore have been appointed without the need for a competitive interview. She also argued that the process was flawed in that she had not expected to be asked financially technical questions which made the interview “unnerving” and affected her overall performance.
She lost her appeal and brought a claim for unfair dismissal.
Tribunal and EAT decision
The tribunal held that adding the finance and accounting responsibilities to the job description was a material change, which was made worse by the inclusion of the finance officer into the redundancy pool.
Accepting her evidence that she was wrong footed by the interview which was undertaken in breach of the Council's own policy and procedure, the tribunal held that the Council’s failure to tell Ms Chaloner about the changes to the job description was a “material omission” and that her dismissal was therefore unfair.
The EAT found that having applied section 98(4) of the Employment Rights Act 1996 correctly (whether the employer had acted reasonably or not), the tribunal had also considered the reasoning in Morgan v Welsh Rugby Union - that tribunals are entitled to have regard to how far the employer established and followed through procedures when making an appointment and whether they were fair.
In this case, the tribunal took into account the context that Ms Chaloner did not know about the differences between the two job descriptions. Nor did she know, when preparing for the interview, that the finance officer had become a competitive candidate for a role which on the basis of the first job description was a close fit to her own.
The appeal panel had failed to address any of these points and, like the original interview panel, had not followed the Council’s stated policy of fully analysing “qualifications, skills, performance, contribution, expertise and potential savings”.
It therefore upheld the tribunal’s decision and found the dismissal unfair.