The application of the fairness test in redundancy dismissals following a restructure

In Green v London Borough of Barking the Employment Appeal Tribunal held that the application of the fairness test under s98 (4) of the Employment Rights Act (ERA)1996 is not modified where employees must compete for newly-created posts following a restructure.

After scoring the lowest of three candidates competing for two posts following a restructure, Ms Green was made redundant. She complained that the process, which included a written test, was unfair as one of her fellow candidates had prior knowledge of the test subject and this was not properly considered during her appeal.

The Tribunal felt it did not need to consider elements such as the composition of the selection pool and the genuineness of the appeal process on the basis that appointment to new roles after a reorganisation would involve an element of subjective judgment on the part of the employer. The Employment Appeal Tribunal disagreed and held that when considering dismissals, Tribunals should use 98 (4) ERA 1996 as a benchmark and must always review the decisions made and processes followed to determine whether the dismissal was within the range of reasonable responses.