Subjective Criteria Can Be Used When Selecting Redundant Employees for Alternative Roles

The EAT has confirmed that employers can use subjective selection criteria when selecting a redundant employee to fill an alternative role. 

In Samsung Electronics (UK) Ltd v Monte-D’Cruz, M was at risk of redundancy and applied for an alternative role which he considered he was ideally suited to.   He was unsuccessful and the role was given to an external candidate.  When he was later dismissed for redundancy, M claimed unfair dismissal. 

The EAT noted that in the earlier decision of Morgan v Welsh Rugby Union, the EAT had made it clear that whilst objective criteria need to be used when selecting employees for redundancy, the same does not apply when considering them for an alternative role.  The employment tribunal considered that the criteria used were nebulous and liable to subjective interpretation and was concerned that employees were not scored consistently or objectively.  The EAT held that the tribunal had applied the wrong test - there is no obligation on an employer always to use objective criteria.  The fairness of a decision to dismiss cannot depend on whether the minutiae of good interview practice are observed.   Only if the tribunal had found that the process followed led to substantial unfairness to M could there be an arguable case of unfair dismissal.

This case is a useful reminder that an employer is entitled to use subjective criteria when recruiting for a role, but not when selecting employees for redundancy.  Failure to use objective criteria when selecting for alternative employment will not normally make the redundancy dismissal unfair.  However, employers should be careful as using subjective criteria alone exposes them to the risk of discrimination claims.