Samsung Electronics (UK) Ltd v Monte-D'Cruz

In a redundancy dismissal, fairness requires an assessment of the process as a whole under section 98(4) of the Employment Rights Act 1996. Consultation may be adequate where the employee is informed of the proposal, given options and a real opportunity to ask questions and discuss available roles.

Selection for alternative employment is not a redundancy-selection exercise. There is no rule requiring wholly objective interview criteria. An employer may make a good-faith evaluative judgment about which candidate is suitable for a new role. Procedural imperfections matter only if they cause serious and substantial unfairness. An employment tribunal must not find unfairness merely because it would have used different assessment methods or reached a different view of the candidate's suitability.

The claimant's senior sales role was removed in a two-stage reorganisation. He unsuccessfully applied for the new Head of Sales role and later for the Business Region Team Leader role. The employer interviewed him using its established core competencies, did not appoint either candidate for the latter role, and dismissed him for redundancy.

The Employment Tribunal at London South held the dismissal unfair. It found inadequate consultation and defects in the interview process for the alternative role, particularly the subjective character of the criteria. It awarded compensation of £64,722. The employer appealed, contending that the Tribunal had wrongly separated the two stages of the process and had substituted its own view for the employer's assessment.

1. Appeal allowed. The Employment Tribunal's findings of unfair dismissal could not stand. The claimant's unfair-dismissal claim was dismissed.

2. The Tribunal wrongly treated the initial and later stages of the reorganisation as sharply separate. A redundancy dismissal involves both the removal of the employee's original role and the decision whether suitable alternative employment is available. The process as a whole must be fair, although different questions arise at each stage.

3. There was no sustainable finding of inadequate consultation. The employer informed the claimant of the proposed reorganisation and its reasons, invited him to apply for the new senior role, offered preparation time and questions, and later supplied information about the new structure and opportunities for further discussion. The Tribunal could not infer inadequate information merely because material was not before it, particularly when the claimant had not taken up the individual consultation opportunities.

4. The Tribunal also adopted the wrong approach to alternative employment. Applying Morgan v Welsh Rugby Union [2011] IRLR 376, the governing question was fairness under section 98(4) of the Employment Rights Act 1996, not compliance with rigid rules requiring objective criteria. Assessment for a new role will commonly involve judgment. The use of subjective or broadly expressed competencies was not inherently unfair.

5. Good interview practice may include agreed definitions, planned questions and fuller records. Failure to attain such an ideal does not itself make a dismissal unfair. Serious substantial unfairness caused by the procedural shortcomings must be shown. None was found or supported on the evidence.

6. The Tribunal impermissibly substituted its own judgment by treating use of past appraisals or the person specification as preferable, and by finding that the claimant was really the best person for the role. The employer had made a good-faith, formal and systematic assessment. Its decision could not properly be second-guessed in the absence of an unreasonable assessment or bad faith. The Polkey issue therefore did not arise.

• Employment Appeal Tribunal: Allowed the employer's appeal and dismissed the claimant's unfair-dismissal claim.
• Employment Tribunal, London South: Held the redundancy dismissal unfair and awarded £64,722 compensation. Its judgment and reasons were sent to the parties on 10 November 2010.