Morgan v The Welsh Rugby Union

In a redundancy arising from reorganisation, selection for a newly created role is not governed by the selection principles applicable to choosing employees for dismissal from an existing redundancy pool. The tribunal must apply section 98(4) of the Employment Rights Act 1996 and assess whether the employer acted reasonably in the circumstances.

An employer need not adhere slavishly to a job description or person specification. The assessment may properly involve an interview and substantial managerial judgment. Relevant considerations include the objectivity and fairness of the process, whether the employer followed its procedures, and whether the appointment was capricious, motivated by favouritism or based on personal grounds.

The claimant was dismissed for redundancy following a management reorganisation. Two existing posts disappeared and a new, wider post of National Coach Development Manager was created. The claimant and two other candidates, including Mr Schropfer, applied. The respondent appointed Mr Schropfer after interviews.

The employment tribunal, by a majority, dismissed the claim of unfair dismissal. It accepted that the interview panel had not followed the proposed job description and scoring process precisely, but found the process sufficiently objective and fair. The claimant appealed, alleging misapplication of the principles in Williams v Compair Maxam and Ralph Martindale & Co v Harris, perversity, and procedural unfairness.

1. Appeal dismissed. The employment tribunal had not erred in law and its conclusion was not perverse.
2. The governing provision was section 98(4) of the Employment Rights Act 1996. The tribunal had to decide whether, having regard to the circumstances, the employer acted reasonably in treating redundancy as a sufficient reason for dismissal. The Employment Appeal Tribunal could intervene only for an error of law.
3. The principles in Williams v Compair Maxam concerned selection for redundancy from an existing pool of employees performing a known job. They did not prescribe the method for filling new and different roles created by a reorganisation. Such appointments are necessarily forward-looking and may involve an interview and assessment of which candidate is best able to perform the new role.
4. Ralph Martindale & Co v Harris did not establish a binding additional legal test that a selection process must satisfy specified criteria of objectivity. The tribunal could consider objectivity, the procedures established and followed, fairness, and whether the appointment was capricious, founded on favouritism or based on personal grounds. No further proposition of law was required beyond section 98(4).
5. An employer making an internal appointment is not required to follow a job description or person specification precisely. It may interview candidates who do not meet every stated requirement and appoint a candidate who does not precisely satisfy the specification, provided the overall decision is reasonable.
6. The tribunal was entitled to treat the panel’s failure to follow the intended scoring and timing arrangements as matters relevant to its assessment under section 98(4). Its conclusion that the process remained objective and fair was open to it.
7. The EAT observed that it is good practice for a tribunal giving a majority decision to set out the minority member’s views, following Anglian Home Improvements v Kelly. That omission was not, by itself, a ground of appeal.

• Employment Tribunal, Cardiff: By a majority, dismissed the claimant’s unfair dismissal claim on 12 January 2010.
• Employment Appeal Tribunal: Dismissed the appeal. The tribunal had applied the correct statutory test and had reached a conclusion open to it.