Can you ask employees to interview for their role during redundancy?

Can a UK employer use an interview process for redundant employees?

Yes, when considering redundant employees for alternative employment it's possible. But only if the applications aren't for the same or a largely similar role.

Remember, your must take a very careful approach to a redundancy situation, otherwise you may face a potential employment tribunal claim from an employee.

Normally in redundancy situations, you'll develop and apply a fair and objective scoring matrix in order to select employees for redundancy. There's no one-size-fits-all checklist to score employees against. But examples of acceptable criteria may include an employee’s:

• Attendance

• Disciplinary record

• Performance record

• Their skills and experience.

Occasionally, some businesses try to get clever. Rather than a traditional selection exercise, they instead conduct an interview process, as case law gives them much more leeway.

A UK legal case has highlighted that an interview process shouldn't be used if employees are effectively re-applying for their old position.

UK Case Law: Gwynedd Council v Barratt

The claimants in this case, Ms. Barratt and Ms. Hughes, were primary school teachers who were made redundant during a school amalgamation exercise by Gwynedd Council. The council closed several schools in the local area, including the school where the claimants were employed, in favour of forming one new, combined school that would occupy the same site as the claimants’ original place of work.

With a reduction in services, the council needed to determine which of the affected employees would be given what they deemed to be ‘alternative’ roles at the newly-created workplace.

Rather than use a scoring process, both claimants were informed their employment was to be terminated and the staffing of the new school would be decided through an application and interview process. Both claimants were interviewed but were unsuccessful.

Unhappy they'd been rejected for what were effectively their former roles in the new school, Ms. Barratt and Ms. Hughes made a claim for unfair dismissal.

The employment tribunal found in the claimants’ favour. While the parties acknowledged that being given the right to appeal would not have altered the outcome for the claimants, the tribunal held the lack of an employer's redundancy consultation, coupled with the use of a competitive interview process, led to the redundancy process being unfair.

The council appealed the finding of. Here, the Employment Appeal Tribunal (EAT) highlighted the distinction between a:

• Redundancy process in which employees are considered for alternative jobs

• One in which employees are effectively applying for their old position.

In the former case, it considered a forward-looking selection process (such as the use of competitive interviews) would be permissible. In the latter, a process of consultation and selection using objective criteria is necessary.

Given the claimants in this case were essentially applying for their old jobs, the EAT held that this was not so much a forward-looking process, in which it would be acceptable to select for new roles based on perceived skills. It was more comparable to a traditional selection exercise where candidates are selected from within a pool.

The tribunal's finding of employee unfair dismissal was upheld.

Expert Insight: James Tamm, Director of Legal Services

"This is welcome confirmation that asking employees to reapply for what are effectively their own roles in a competitive interview process is unreasonable. It makes sense in many ways, as doing so effectively ignores all the evidence you have about their previous performance in favour of a one-off interview, which we all know can go badly and is a less than ideal way to judge a person. In that sense, using an interview process as an alternative to a selection exercise is almost inherently unfair."

Seek legal advice for a compliant redundancy process

Redundancy can be a difficult and unsettling time for employees and a challenging process for employers to get right. If you're facing a potential redundancy situation, our Employment Law specialists know everything there is to know about conducting a fair procedure are can guide you every step of the way so that legal complexities don't lead to costly mistakes.

To enquire about our personalised, fixed-fee support, call 0345 226 8393.