21 April 2017
In the case of 'Green v London Borough of Barking' the Claimant had been dismissed by reason of redundancy. She scored the lowest of three. As a result of the restructure, however, two new posts were created. The Claimant was not successful in securing one of these new roles and claimed that her dismissal was unfair.
She argued that the written test which was used during the recruitment process was unfair as one of the other applicants had prior knowledge of the subject. She also maintained that the appeal process was unfair.
At first instance the Employment Tribunal noted that this was not the “normal” dismissal by reason of redundancy case since the issue was why the Claimant had not secured the new role that had existed. Previous cases had said that where this was the case, employers were offered more leeway in determining who the best candidate for the new role is (as opposed to having a more objective process, which is ordinarily required when dismissing by reason of redundancy). The Tribunal found the dismissal to be fair.
The Claimant appealed arguing that the Judge had avoiding asking the right questions in assessing whether the dismissal was fair or not. Her appeal was successful. The Court noted that in all unfair dismissal cases the statutory provisions need to be applied. Thus in this case the decision to dismiss must be considered fully which included the reason for the dismissal and procedure followed.
The question is not whether the Tribunal would have dismissed (and followed the procedure it did) but rather whether a reasonable employer in the circumstances facing it could fairly have dismissed.
This case provides a good reminder of the need for employers to follow a fair process whenever dismissals are being considered. Thus ensure there is a potentially fair reason in place and a fair process is adopted.
The decision can be read here: http://www.bailii.org/uk/cases/UKEAT/2017/0157_16_1003.html
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