In a restructuring situation, employers sometimes adopt the practice of declaring that all jobs in a particular department have ceased and then create completely new roles, asking all the staff affected to apply for the new positions. Unsuccessful applicants for the new jobs are identified as provisionally redundant. The EAT’s decision in The City Of Newcastle Upon Tyne v Ford and Khan reminds us that a tribunal has to be convinced that employees are aware of all the criteria applying to the selecting-in process.

The Council decided to restructure (downsize) its Youth Service Department. The method used was not by way of selection for redundancy from existing staff, but all staff in the department were invited to apply for a new role in the new structure. The recruitment process was agreed by the Council with Unison.  It involved interviewing the internal candidates first. Following a proper consultation exercise, the internal candidates, including Ford and Khan, were interviewed by a panel. At interview each candidate was asked the same six questions, for which model answers had been prepared.  Out of five candidates only one was successful and Ford and Khan were made redundant.

An employment tribunal found that the Council fell down in its procedure by failing to tell the internal candidates that no account would be taken of their expression of interest letter nor any knowledge gained in their dealings with the candidates over a period of time unless it was spelled out by the candidate at interview. That was why these Claimants performed so badly. However, having found the dismissals unfair, the tribunal went on to apply the Polkey principle, reducing Khan’s compensatory award by 40% and Ford’s by 50%.

The EAT upheld the tribunal’s decision. The tribunal had found on the evidence that the Claimants did not have a fair opportunity to save their jobs. While the issue was finely balanced, and the EAT may well have reached a different conclusion as to fairness, the point was justly before the tribunal for determination and it could not be said that the tribunal’s conclusion was one which was legally perverse or that they substituted their view for that of the Council.

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