In Green v London Borough of Barking & Dagenham, the Respondent completed a restructure in which three existing roles were reduced to two. An internal competition was held consisting of an interview and a written test between the three staff to determine who would be selected for the two new roles. Ms Green scored the lowest out of the three candidates and was ultimately dismissed for redundancy. She brought a claim for unfair dismissal based on various criticisms of the selection process.
Initially, the Employment Tribunal dismissed the claim. The Tribunal Judge felt this was not a question of why the Claimant was selected for redundancy but rather why she had not been appointed to one of the two remaining positions. It applied the test in Morgan v Welsh Rugby Union, which it interpreted as giving employers a substantial element of discretion in recruitment.
However the EAT held that the Tribunal had wrongly elevated Morgan to a principle of law, and that in any circumstance where a dismissal occurs the test from Williams v Compair Maxam applies. Tribunals should review the decisions made, the processes followed, and whether each stage of the redundancy process falls within the “band of reasonable responses.” It remitted the case back to a different Employment Tribunal for a fresh hearing.
This case acts as a reminder to employers that Tribunals will review the overall fairness of the process and will not just focus on an individual stage.