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Are you the best person for the job?

28th March, 2012

The case of Samsung Electronics v Monte-D’Cruz has determined that once an employee is dismissed by reason of redundancy he or she does not need to be appointed in a new role arising out of the re-organisation if they are “in reality the best person for the job”.

The Claimant was working as a head of department for Samsung.  He, along with the other two heads of department, were informed that due to a re-structure, their roles would be removed and a single role would be created.  The Claimant applied for this role.  He was assessed on the basis of a presentation and competencies commonly used in annual appraisals but was unsuccessful.  He then applied for a more junior role but an external candidate was appointed instead.

The judgement handed down on 1 March 2012 by the Employment Appeal Tribunal (“EAT”) reversed the decision of the tribunal, which had found the dismissal of the Claimant was unfair due to inadequate consultation and the selection criteria being too subjective.  The EAT held the tribunal was wrong to substitute its own view for that of the employer in relation to the suitability of the Claimant for the role.  Although the interview process should be judged on its objectivity, it was said some subjectivity was inevitable, even though “subjectivity is often used in this and similar contexts as a dirty word”.

This stance reiterates the EAT’s position last year in Morgan v Welsh Rugby Union where it was stated “an employer’s assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgement”.  As highlighted in the conclusion of Samsung, a recruitment process may be flawed, but will not mean an employee will be able to complain that their dismissal is unfair where they are simply “the victim of a genuine redundancy situation”.

If you have any questions regarding redundancy or any other employment matters email Claire Brook in our Employment Team or call 01244 405575.

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