Green v London Borough of Barking & Dagenham [EAT] | 2017
Ms G was one of four Senior Regeneration Professionals at the Borough. Three of the four, including Ms G, were part of the Regeneration Team.
As part of a wider restructure, a proposal was put forward by the Borough to ‘delete’ the three Senior Regeneration Professional posts in the Regeneration Team and create two new posts. Appointment to the new posts was by a written test and competitive interview process.
Ms G scored 15.5 across the written test and interview compared to her colleagues who scored 21 and 17.5. With the lowest score, Ms G was not appointed to one of the two new roles and was therefore made redundant.
Ms G claimed her redundancy was unfair. In particular she challenged the written test. Ms G contended that it was based on an actual project which one colleague had been involved in, giving them an unfair advantage.
The employment tribunal found that the dismissal was fair. It considered the process was more akin to a recruitment process than a redundancy process. A selection process for redundancy has to be objective and within the range of reasonable responses, whereas a recruitment process can be more subjective.
Ms G was also a trade union steward. The employment tribunal dismissed allegations that this had influenced the Borough’s decision to dismiss her and she had been targeted for redundancy because of her trade union stewardship.
The EAT Decision
The EAT concluded that the Borough did not have to apply objective criteria to select those who were to be made redundant based on the role they were doing and it was entitled to look forward to the roles they wished to be undertaken under the new structure. However, the EAT stated that the recruitment process used had to be within the range of reasonable responses. The employment tribunal had not considered whether this was the case. Rather than decide if the written test and interview process was within the range of reasonable responses, and therefore whether the dismissal was fair or not, the EAT concluded that a different employment tribunal must hear the case again.
This decision highlights the risk for employers of not acting reasonably in relation to all aspects of a re-organisation
Recent cases involving redundancy and appointments to new roles have suggested that employers can be more subjective in their approach to appointing to new roles than they would have to be if selecting for redundancy. This case makes it clear, however, in any redundancy case, every stage of the process has to be tested for reasonableness. It may well be that the Ms G’s dismissal is found to be unfair. Do you think it was within a band of reasonable approaches that one of the employees was involved in the project on which the written test was based? This is the question the employment tribunal has to consider when it rehears this case.
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