Somerset County Council v H R Chaloner

In a redundancy reorganisation involving competitive appointment to a new role, fairness remains governed by Employment Rights Act 1996, section 98(4). An Employment Tribunal may assess whether the employer established and followed a fair appointment procedure. It may consider the objectivity of the interview process, while recognising that an employer's assessment of who will perform a new role commonly involves judgment.

A material unnotified change to the job description, coupled with a selection process that fails to carry out the promised assessment of candidates' qualifications, skills and performance, may support a finding of unfair dismissal. An appeal will not cure those defects unless it addresses them effectively.

The Council reorganised an adult education and conference centre after a severe downturn in income. Ms Chaloner, its deputy director, applied for a newly created Business Development Manager role. The Council materially revised the job description to add financial responsibilities without informing her. It then selected another candidate after competitive interviews.

The Employment Tribunal held that the dismissal was unfair. It found that the Council had failed to notify Ms Chaloner of material changes and had not followed its stated process of a full and proper analysis of qualifications, skills, performance, contribution, expertise and potential savings. The Council appealed, alleging inadequate reasons, misapplication of Employment Rights Act 1996, section 98(4), and failure to take proper account of the internal appeal.

1. Appeal dismissed. The Employment Tribunal applied the correct test under Employment Rights Act 1996, section 98(4), and was entitled to find the dismissal unfair.

2. Morgan v Welsh Rugby Union did not prescribe a different rule for a redundancy reorganisation in which new roles were filled competitively. The Tribunal had to apply section 98(4). In doing so, it could consider the objectivity of the interview, the extent to which the employer established and followed appointment procedures, and whether those procedures were fair. That approach was consistent with Morgan, [2011] IRLR 376, at paragraph 36.

3. The Tribunal did not rest its conclusion on Ms Chaloner's subjective sense of disadvantage. It found that the changes from the original to the revised job description were material. She had not been told of them before interview, despite their effect on the role and on the competing candidate's position. In that context, the Tribunal was entitled to conclude that she was significantly disadvantaged.

4. The Tribunal was also entitled to treat the Council's failure to conduct its promised full and proper analysis of qualifications, skills, performance and related matters as unfair. The interview panel instead relied on a subjective assessment of answers to questions. The internal appeal did not rectify those fundamental defects.

5. The Tribunal's comments on the Polkey issue were not part of its core reasoning on liability. Its reasons, read fairly and as a whole, adequately disclosed why the dismissal was held unfair.

• Employment Appeal Tribunal: dismissed the Council's appeal and upheld the Employment Tribunal's finding that Ms Chaloner had been unfairly dismissed.
• Employment Tribunal: judgment dated 27 February 2012 upheld Ms Chaloner's unfair dismissal claim.