Employment Cases Update

Morgan v The Welsh Rugby Union UKEAT/0314/10/LA

Date published: 20/01/2011

Appeal against a decision that the claimant had not been unfairly dismissed. Appeal dismissed.

Employment Claims without a Lawyer 2nd edition published March 2018

The claimant was employed by the respondent as Elite Coach Manager, along with a colleague who was the Community Coach Manager. As a result of reorganisation, both posts were to disappear, to be replaced by one post which was a senior role with overall strategic responsibility to develop and deliver coaching services. One employee at least would thus be made redundant. Both employees were interviewed for the new post, along with an external applicant, all candidates having received a job description and person specification, which provided that the successful person will be qualified to a certain level, and also have relevant experience. The claimant’s colleague got the job and the claimant was made redundant. The claimant complained that the selection process was unfair because the successful candidate had neither the qualifications nor the experience specified, and his interview presentation had overrun by so long that he had not been subject to the same level of questioning as the claimant. The Employment Tribunal rejected his claim of unfair dismissal on the basis that, by a majority, there was no unfairness caused to the claimant as a result of interviewing, and eventually appointing, the other person to the post. The interviews of the claimant and his colleague were plainly not identical in their structure but they were satisfied that the interviewing process of both candidates was objective and fair.

The EAT agreed with the Tribunal’s argument, rejecting the claimant’s arguments that 1) the Tribunal had not applied the guidance given in the case of Martindale, that the selection process should be objective and avoid the possibility of bias, partiality and capriciousness and 2) its decision was perverse by concluding that it was open for the respondent to interview the successful candidate, having regard to the job description and person specification. The EAT said that the Appeal Tribunal in Martindale was not intending to lay down any law as described above – Martindale was very different in that there was no job description of any kind. The ET had committed no error of law in concluding that the respondent did not have to follow the job description precisely.

_______________________

Appeal No. UKEAT/0314/10/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7 January 2011

Before

HIS HONOUR JUDGE RICHARDSON

MR R LYONS

MRS J M MATTHIAS

MR L MORGAN (APPELLANT)

THE WELSH RUGBY UNION (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant MR JONATHAN WALTERS (of Counsel)
Instructed by:
Messrs Geldards LLP Solicitors
Dumfries House
Dumfries Place
Cardiff
CF10 3ZF

For the Respondent MR NICK DE MARCO (of Counsel)
Instructed by:
Messrs Hugh James Solicitors
Hodge House
114-116 St Mary Street
Cardiff
CF10 1DY

SUMMARY

Unfair dismissal – redundancy – selection for new role - fairness

The Claimant was made redundant by the Respondent consequent upon a re-organisation. He, along with others, applied for a new post created by the re-organisation. The Respondent prepared, but did not in all respects adhere to, a job specification and format (with scoring) for interview. The Claimant was unsuccessful. The Tribunal held that his dismissal was fair. Held – the Tribunal did not err in law. Authorities, including Ralph Martindale & Co v Harris UKEAT/0166/07, discussed.

HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Mr Leighton Morgan ("the Claimant") against a judgment of the Employment Tribunal sitting in Cardiff (Employment Judge Harris presiding) dated 12 January 2010. By a majority the Tribunal dismissed the Claimant's claim that he had been unfairly dismissed by the Welsh Rugby Union Limited ("the Respondent").

2. The Claimant's dismissal was on grounds of redundancy consequent upon a re-organisation of the Respondent's management. It is not in dispute, for the purposes of this appeal, that redundancy was the reason for his dismissal. The Claimant's central complaint is that he was not appointed to a post which was created consequent upon the re-organisation. He says that the appointment process lacked all objectivity and fairness; and that in consequence his dismissal was unfair.

The background facts

3. The Claimant was employed by the Respondent from 12 August 1996 until his dismissal, which took effect on 23 July 2008. He started as a district director of rugby. He progressed to be the National Coach Development Manager (from May 2003) and then the National Elite Coach Development Manager (with effect from 2005). In this post he focussed on the development of coaches with the ability to coach at the premier level of the game. At this time there was a separate post of Community Rugby Coach Education Manager, held by Mr John Schropfer. His remit was to focus on the development of coaching at lower levels of the game.

4. The re-organisation to which we have referred was the result of a review in the early months of 2008. One proposal involved the amalgamation of the different departments which were responsible for elite coaching and community coaching. The separate posts held by the Claimant and Mr Schropfer were to disappear. A single post of National Coach Development Manager was created. This post was (as the Tribunal found) a new post, with a wider remit than the similarly-named post which the Claimant had held between 2003 and 2005. It was a senior role with overall strategic responsibility for developing and delivering coaching services.

5. There were three applicants for the post, including both the Claimant and Mr Schropfer. The applicants were all interviewed on 1 July 2008 by the Respondent's Remuneration and Appointment Committee. The Committee considered that both the Claimant and Mr Schropfer were capable candidates. They chose to appoint Mr Schropfer.

6. The fairness of this appointment process was central to the case before the Tribunal. We will therefore set out certain further features of it.

7. The committee which conducted the interviews and made the selection was a committee of senior officials within the Respondent: Mr David Pickering, the Chairman, Mr Martyn Davies (Head of the Finance Committee) and Mr Alan Jones (Head of Game Policy Committee). It had originally been intended that the committee would contain a coach; but in the light of holiday commitments the Respondent proceeded without any coach on the committee.

8. There was a job description for the post. After sections on accountability and core responsibilities there was a "person specification". Under the heading "Qualifications" it was provided that the person "will be qualified to at least WRU Level 4 or equivalent". It was also provided that the person "will have an established reputation of developing elite coaches and within the field of coach education". There was, as usual in such documents, a demanding list of skills and personal attributes. The job description was described as "subject to change pending review by the roleholder and their line manager". It was, as the Tribunal found, developed for use when an external appointment was contemplated.

9. The candidates were told that the interview would comprise a presentation and standard interview questions. The candidates were asked to prepare a 10-15 minute presentation on the subject:

"'Coach development, Coach Education and Coaches have been undervalued, underutilised and under-resourced in Wales over the last ten years.' Discuss in relation to the role of National Coach Development Manager."

Standard questions were prepared for the interview, and a scoring system set out, which attributed 40 points to the presentation, 50 points to the answers given to ten questions (5 marks per question) and 10 points under a heading "Individual fit within the organisation/team".

10. On any view, the committee did not adhere to the job description or to the format for the interview. They did not treat them as prescriptive of the task they had to perform in selecting for the post. Thus on any view Mr Schropfer was not qualified to WRU Level 4; he was qualified to level 3. The Claimant was qualified to level 5. Moreover the Claimant had substantial recent experience of training elite coaches; Mr Schropfer had never done so, although he had been assistant coach of the national team. Whereas the Claimant gave a presentation lasting 10-15 minutes, Mr Schropfer gave a presentation of much greater length, setting out a plan and vision for the post as opposed to answering the precise question asked. The committee did not hold him to a 10-15 minute timescale. The committee gave overall scores but did not produce individual scores for the presentation or for individual questions. Indeed, because Mr Schropfer gave a lengthy presentation he was not asked individual questions in the manner envisaged when the interview was planned.

11. Why did the committee appoint Mr Schropfer? The committee considered both the Claimant and Mr Schropfer to be capable candidates. The average of their scores was close: 77.25% for the Claimant as opposed to 83.25% for Mr Schropfer. The evidence called by the Respondent was to the effect that the panel unanimously considered that Mr Schropfer was the best candidate for the job. They felt that his presentation showed he had a very clear vision for coaching development.

The Tribunal hearing and reasons

12. The Tribunal heard from Mr Burton, the Respondent's Head of Group Operations, who set up the selection process, and from Mr Pickering and Mr Davies, two members of the panel. They heard from the Claimant and from two witnesses who considered his dismissal to be unfair. Both parties were legally represented.

13. The Tribunal recorded in some detail submissions made by the Claimant's representative, Mr Jenkins. It is sufficient for us to summarise the essential headings.

(1) The Respondent failed to carry out a comparison of the relative skills and abilities of the Claimant and Mr Schropfer. Such a comparison would have led inevitably to the conclusion that the Claimant was the only appropriately skilled candidate.

(2) The decision to select Mr Schropfer was fundamentally flawed because the Respondent (i) ignored its own job description and person specification, (ii) paid no attention to the relative background and experience of the candidates, (iii) based its decision on the subjective views of a panel with no experience of coach development, (iv) in the absence of a coaching expert, lacked the expertise on the panel to assess the comparative ability of the candidates, (v) placed the Claimant at a disadvantage by allowing Mr Schropfer to exceed the 10-15 minute allowance for a presentation and (vi) failed to use the marking criteria laid down for the interview.

14. As regards the selection process for the new role, the Tribunal placed reliance on a decision of the Employment Appeal Tribunal in Ralph Martindale & Co v Harris UKEAT/0166/07. We shall return to this case later in our judgment. It is sufficient to note that a phrase used by the Tribunal ("the selection process must at least meet some criteria of fairness") originates from the Appeal Tribunal's judgment in that case.

15. The Tribunal set out its principal conclusions in paragraphs 12, 17 and 18. We think it will suffice to quote paragraphs 17 and 18. They are lengthy. We have broken them into sections for the purpose of quotation:

"17. The Tribunal further found that the Respondent did not ignore the respective coaching experience of the Claimant and Mr Schropfer when it came to making the selection for the new position of National Coach Development Manager. Whilst on paper it appeared to be true that the Claimant had the greater coaching experience and the greater coaching qualifications, the selection of the candidate for the new role was not a purely paper based process. The interviewing process played an important role in the selection process and resulted in the selection of the candidate who appeared less strong on paper.

The Claimant submitted that Mr Schropfer did not meet the Respondent's criteria for the new role but that was not accepted by the Tribunal. Looking at Mr Schropfer's curriculum vitae (at pages 100 to 101) and the job description for the new role it appeared to the Tribunal that it could not reasonably be said that Mr Schropfer should not have been interviewed for the new position because he did not meet the criteria. The Tribunal found that the Respondent did not act unreasonably in interviewing Mr Schropfer for the new position. The Respondent was in a very good position to judge whether Mr Schropfer was suitable for interview and for the job itself, having regard to his coaching background. In the absence of any evidence of bias, partiality or capriciousness on the part of the Respondent in its approach to the task of selecting candidates for interview and for the position itself, the Tribunal was unable to conclude that the selection of Mr Schropfer for interview and for the new role was unreasonable or otherwise unfair to the Claimant.

The Tribunal was satisfied that the constitution of the interviewing panel was fair and reasonable. There was unchallenged evidence that the Appointment and Re-numeration Committee was an extremely senior committee with experience of making key senior appointments. It was regrettable that the panel lacked a person or persons with specific coaching expertise but that was an omission that affected each of the candidates equally. There was nothing to indicate to the Tribunal that the absence of a coaching expert from the interviewing panel caused specific prejudice to the Claimant. No such prejudice was identified by the Claimant and the Tribunal was satisfied that none existed.

The Tribunal was also satisfied that proper arrangements were made for the interviewing process by Mr Burton. The provision of the interview assessment sheets and the questionnaires to the interviewing panel was plainly designed to achieve a fair selection procedure as was the decision to request a presentation from the interviewees. The Tribunal did find that the interviewing panel did not strictly adhere to the process that Mr Burton had intended but, by majority, the Tribunal found that the interviewing process was conducted in a fair manner. The interviewing panel did not carefully complete their questionnaires and interview assessment sheets in relation to each of the applicants and they plainly allowed Mr Schropfer to go on for longer than 10 to 15 minutes with his presentation. By majority, however, the Tribunal was satisfied that no unfairness was caused to the Claimant as a result. There remained a discernible objective process and the resultant decision could not be viewed as capricious or arising out of favouritism for Mr Schropfer on unidentified personal grounds. It would have been open for the interviewing panel to have cut short Mr Schropfer's presentation but they chose not do that and instead limited his time to deal with questions and answers. The panel was plainly impressed by Mr Schropfer's presentation but it was Mr Schropfer that took the risk when deciding to go over the 10-15 minutes that were intended for the presentation. One of the interviewers, Martyn Davies, made an adverse comment about Mr Schropfer on his interview assessment sheet (at page 114 in the trial bundle) where he stated that Mr Schropfer's presentation was 'far too long'. Such a long presentation could well have gone against Mr Schropfer in the interview but it seems it was generally well received. The Claimant, on the other hand, stuck to the time limit of 10-15 minutes when delivering his presentation and, as a result, was able to spend 45 minutes or so on the cut and thrust of questions and answers. The interviews of the Claimant and Mr Schropfer were plainly not identical in their structure but the Tribunal, by majority, was satisfied that the interviewing process of both candidates was objective and fair.

18. In conclusion, the Tribunal was satisfied that the selection process for the new role of National Coach Development Manager was objective. The process was certainly sufficiently objective to avoid the possibility of a decision which might be seen as capricious or arising out of favouritism to Mr Schropfer. Unlike the case of Martindale, this was a case in which a job description for the role of National Coach Development Manager had been prepared and the criteria for the new role could not be said to have been selected or otherwise dealt with in a subjective way. The Tribunal, by majority, accepted the Respondent's submission that there was a rigorous interviewing process, which had an important influence on the final decision on selection for the new role. The question for the Tribunal was whether the selection process, including the interview, met at least some criteria of fairness and, by majority, the Tribunal found that it did.

A senior committee was appointed to interview the candidates that had considerable experience in key appointments. The same panel was used for each of the three candidates. Each candidate was asked to deliver a presentation on the same subject and each candidate was asked a list of questions. Though the Claimant spent less time on his presentation than did Mr Schropfer there was evidence from the Claimant that he had properly addressed the topic in his presentation. The overall length of the interviews was broadly the same, each lasting about one hour and notes of the interviews were recorded by the panel members on interview assessment sheets and the questionnaires. A scoring system was adopted which appeared to the Tribunal to be fair and objective. Finally, there was no suggestion that any member of the interviewing panel was biased against the Claimant. Taking those matters into account, the Tribunal was satisfied, by majority, that the selection process for the role of National Coach Development Manager met sufficient criteria of fairness as to render the process fair and reasonable. It follows that the Tribunal did not accept the Claimant's submission that a fair and reasonable selection procedure would inevitably have resulted in his appointment to the role of National Coach Development Manager. Accordingly, the Claimant's claim of unfair dismissal shall be dismissed."

Submissions

16. On behalf of the Claimant Mr Walters first submits that the Tribunal has failed to have regard to and apply the third and fourth principles established by the Appeal Tribunal in Williams v Compair Maxam [1982] IRLR 83. The third principle requires that an employer making a selection for redundancy should seek to establish criteria for selection which so far as possible do not depend upon the opinion of the person making the selection but can be objectively assessed. The fourth principle requires that the selection should be fairly made in accordance with those criteria. Mr Walters lays emphasis, particularly in his skeleton argument, on the fourth principle. He submits that the Tribunal did not apply it. If it had done so, it would have appreciated that the Respondent had permitted two candidates to go forward for interview – one of whom was Mr Schropfer – when they did not meet the job specification, which was the objective standard of assessment. Had the Respondent applied its own criteria properly those candidates would have been excluded and the appointment of the Claimant would have been inevitable.

17. Mr Walters further submits that the Tribunal did not apply guidance given by the Appeal Tribunal in Ralph Martindale v Harris [supra]. He submits that this guidance requires an employer selecting between redundant employees for a new role to operate a system which is (1) objective and (2) avoids the possibility of a decision which might be seen as capricious or arising out of favouritism on personal grounds. The Tribunal's approach, exemplified in paragraph 17 of its reasons, paid no real attention to the question whether the process was objective. It was not sufficient for the Tribunal to be satisfied only that there was no evidence of bias, partiality or capriciousness.

18. Further, Mr Walters submits that the Tribunal reached conclusions which were perverse. He submits it was perverse for the Tribunal to conclude that Mr Schropfer met the Respondent's criteria for the new role and that it was open to the Respondent to interview him for that role, having regard to the job description and person specification. It was not sufficient for the Tribunal to say, as it did in paragraph 17, that Mr Schropfer appeared "less strong" on paper. He was not eligible for appointment because he did not have the prescribed level of coaching skill or the required experience.

19. Mr Walters also submitted that the Tribunal's conclusion that the interviewing process was carried out in a fair manner, causing no unfairness to the Claimant, was unsustainable. He submitted that the Claimant must have been disadvantaged by the willingness of the panel to entertain a lengthy presentation and to value it positively. The marking regime was not fully followed and the panel contained no member with expertise in coaching.

20. On behalf of the Respondent, Mr De Marco pointed out that the third and fourth principles laid down in Williams applied to selection for redundancy rather than to selection for a new role. Nevertheless he was inclined to accept that an employer had to apply an objective approach to selection for a new role – see Martindale v Harris [supra]. But he submitted that Martindale itself was authority for the proposition that the interview could itself be part and parcel of the application of objective criteria. The interview was part of the selection process; performing well in interview before an experienced panel was an objective criterion, far removed from the facts in Martindale.

21. Mr De Marco further submitted that Martindale, properly read, did not set out a two part test in the way which Mr Walters had suggested. The Appeal Tribunal in that case was concerned only to ensure that the system should be sufficiently objective to avoid a decision which might be seen as capricious or arising out of favouritism. Further, he submitted that the Tribunal plainly considered, in paragraphs 17 and 18, whether the process had a sufficient degree of objectivity.

22. On the question of perversity, Mr De Marco took us to familiar authorities, including Melon v Hector Powe Ltd [1981] ICR 43 at 48, Stewart v Cleveland Guest (Engineering) Limited [1994] IRLR 440 at 443 and Yeboah v Crofton [2002] IRLR 634. He submitted that the Tribunal was entitled to reach its conclusions. On the question of paper qualifications, he submitted that the Respondent was not bound to look for and appoint only a candidate who met all the qualifications on the job description. Moreover the panel was entitled to and indeed bound to take account of the interview. Overall he submitted that the Tribunal reviewed each aspect of unfairness relied on by the Claimant and reached conclusions which it was fully entitled to reach.

Discussion and conclusions

23. Since it was accepted that the Claimant was dismissed by reason of redundancy, the key statutory provision for the Tribunal to apply was section 98(4) of the Employment Rights Act 1996, which provides –

"….the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

24. Parliament has placed upon the Employment Tribunal the task of making this assessment. The Employment Appeal Tribunal has a different role. It is empowered to intervene if and only if an error of law has been made by the Tribunal.

25. Thus for example in Williams v Compair Maxam, where the Appeal Tribunal set out principles of good industrial relations to be observed in redundancy cases where the employees are represented by an independent union recognised by the employer, the Appeal Tribunal also said:

"35. We must add a word of warning. For the purpose of giving our reasons for reaching our exceptional conclusion that the decision of the Industrial Tribunal in this case was perverse, we have had to state what in our view are the steps which a reasonable and fair employer at the present time would seek to take in dismissing unionised employees on the ground of redundancy. We stress two points. First, these are not immutable principles which will stay unaltered for ever. Practices and attitudes in industry change with time and new norms of acceptable industrial relations behaviour will emerge. Secondly the factors we have started are not principles of law, but standards of behaviour. Therefore in future cases before this Appeal Tribunal there should be no attempt to say that an Industrial Tribunal which did not have regard to or give effect to one of these factors has misdirected itself in law. Only in cases such as the present where a genuine case of perversity on the grounds that the decision flies in the face of commonly accepted standards of fairness can be made out, are these factors directly relevant. They are relevant only as showing the knowledge of industrial relations which the industrial jury is to be assumed as having brought to bear on the case they had to decide."

26. Moreover, because the Appeal Tribunal only has a jurisdiction to intervene where there is an error of law, there is only limited room for an argument that the decision of the Tribunal was perverse. The modern cases are well-known: they were cited to us, and we need not repeat them. But it is worth underlining the way in which the point was put in Williams itself:

"13. There remains the question whether the decision of the Industrial Tribunal was perverse. This Appeal Tribunal has jurisdiction to deal only with appeals on a point of law. Some appeals are concerned with obvious points of law, e.g. the construction of statutes. Many more are concerned with cases where the point of law is less obvious, e.g. the Industrial Tribunal can err in law by finding facts which there is no evidence to support or by failing to find facts as to which there was undisputed evidence. Again many appeals allege that the Industrial Tribunal misdirected itself in reaching its conclusion by overlooking some supposed principle of law (e.g. that there must always be consultation before dismissal). It is in relation to these types of appeal that the Court of Appeal has repeatedly said that the appellate courts should not be astute to interfere and lay down principles law: the question whether a dismissal was fair for the purposes of s57(3) is a question of fact for the Industrial Tribunal: see Hollister v The National Farmers Union [1979] IRLR 238 (above), Bailey v BP Oil Kent Refinery Ltd [1980] IRLR 287, UCATT v Brain [1981] IRLR 225. We are bound by these decisions. Even if we were not, with respect we agree that it is not in the best interests of the system of Industrial Tribunals if this Appeal Tribunal seeks to lay down detailed principles of law as to what is fair or unfair, and then find that an Industrial Tribunal has misdirected itself by failing to observe such legal principles."

27. The principles which were put forward in Williams as generally accepted principles where employees are represented by an independent union were –

"1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment."

28. The "criteria" referred to in this passage are criteria for selecting those employees who are to be made redundant from within an existing group. For the purposes of these criteria, the question of alternative employment is a separate issue, addressed by paragraph 5.

29. There are some redundancy cases, of which this is one, where redundancy arises in consequence of a re-organisation and there are new, different, roles to be filled. The criteria set out in Williams did not seek to address the process by which such roles were to be filled.

30. We shall turn in a moment to the authorities which support this proposition. But it is, we think, an obvious proposition. Where an employer has to decide which employees from a pool of existing employees are to be made redundant, the criteria will reflect a known job, performed by known employees over a period. Where, however, an employer has to appoint to new roles after a re-organisation, the employer's decision must of necessity be forward-looking. It is likely to centre upon an assessment of the ability of the individual to perform in the new role. Thus, for example, whereas Williams type selection will involve consultation and meeting, appointment to a new role is likely to involve, as it did here, something much more like an interview process. These considerations may well apply with particular force where the new role is at a high level and where it involves promotion.

31. In Akzo Coatings v Thompson (EAT/117/94) His Honour Judge Peter Clark said:

"There is, in our judgment, a world of difference between the way in which an employer approaches selection for dismissal in a redundancy pool where some will be retained and others dismissed. It is to that exercise which points 2-4 in the Williams guidelines are directed. These observations have no application when considering whether the employer has taken reasonable steps to look for alternative employment. The Tribunal's approach was wholly erroneous in law."

32. Likewise in Ball v Balfour Kilpatrick Ltd (EAT/823/95) His Honour Judge Smith said:

"That there is no rule of law that selection criteria must be exclusively objective."

He went on to say:

"It is clear on the authority of Akzo Coatings Plc v Thompson and Others [1996] EAT (unreported) that the touchstone in such a situation is reasonableness rather than the application of either agreed selection criteria for redundancy or the application of objective criteria."

And in Darlington Memorial Hospital NHS Trust v Edwards and Vincent (EAT/678/95) His Honour Judge Hull said:

"If these are new posts with a different job description from anything which the various Applicants brought to them, then it seems to us that the employer is most certainly not under a duty to carry out something very like the exercise which he has to carry out in deciding who to select for redundancy. On the contrary, if he is to be allowed to manage his business, he must select as he thinks right. If he tells the employees that they will be allowed to apply for new jobs, as was manifestly the case here, then of course he will be required to carry out the exercise in good faith. If they are to be allowed to apply their applications must be considered properly. If the criteria are different from the old jobs so be it, that was part of the original occasion of redundancy, it was as much reorganisation as redundancy, although redundancy was the result. But to say that they are the same process and that it must be based on similar principles is quite simply, in our view, wrong. It may be, we are not going to decide this, that the duty goes beyond faith, and it may be said that there is some sort of duty of care, but there it is, it is something which the employer has said he will do and he must do it. He must consider the applicants."

33. In Martindale itself the employer's reorganisation gave rise to a new position of Director and General Manager. The claimant and one other applied for the position. The Tribunal said:

"15.2 Where two senior employees are at risk of dismissal for redundancy, the fact that they are in different pools may be of some importance: however where, as here, the practical situation is that both are ostensibly capable of carrying out the new role, and whichever is not appointed will be made redundant, such a pooling decision is of minimal importance. Therefore current industrial practice would indicate that the method of selecting which employee will get the new role would involve a reasonable employer in operating a system which was objective and avoided the possibility of a decision which might be seen as capricious or arising out of favouritism for one candidate over another on personal grounds. We can see that consultation with employees or unions as to what criteria should be adopted for selection to a new position would not be appropriate. However there was no job description for the new role. The criteria selected were dealt with in an entirely subjective way, the interview, which might have been expected to apply objective criteria connected with the role, had no influence on the outcome of the decision making, Mr Marshall relying almost entirely on his subjective view as to the abilities of candidates. We cannot accept that such an approach reflects the current industrial relations practice of a reasonable employer. In those circumstances it is clear that the reason for dismissal was not a sufficient reason within the meaning of section 98(4) of the ERA given the size and administrative resources of the respondent.

15.3 The new role was opened to the workforce by internal advertisement. We do not consider this to reflect the approach in current industrial relations practice of a reasonable employer. The following statement reflects the tribunals view as to current industrial relations practice in the absence of any particular circumstances suggesting a different course. If there was a question as to the capability of either person at risk of redundancy to undertake this role, then it should have been established that neither was suitable before opening the new role to further applicants.

15.4 It is our judgment that the process adopted was not reasonable, and that in consequence the claimant was unfairly dismissed."

34. The Appeal Tribunal declined to interfere with that decision. It considered that the decision contained no error of law. It said that it was open to the Tribunal to reach the conclusion which it reached, applying section 98(4) of the 1996 Act.

35. We do not think that Martindale should be treated as laying down any principle of law which a subsequent Tribunal is bound to follow, except of course that the Tribunal must apply section 98(4) of the 1996 Act. In summarising the effect of the earlier decisions the Appeal Tribunal said that the "selection process must at least meet some criteria of fairness". But we do not think the Appeal Tribunal was intending to lay down any rule of law. In Martindale itself there was no job description of any kind and the interview (which was by one person) had, on the Tribunal's finding, no influence on the outcome of the decision making. It is not surprising that the Tribunal was critical of the process and found the dismissal to be unfair, applying section 98(4).

36. To our mind a Tribunal considering this question must apply section 98(4) of the 1996 Act. No further proposition of law is required. A Tribunal is entitled to consider, as part of its deliberations, how far an interview process was objective; but it should keep carefully in mind that an employer's assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment. A Tribunal is entitled to take into account how far the employer established and followed through procedures when making an appointment, and whether they were fair. A Tribunal is entitled, and no doubt will, consider as part of its deliberations whether an appointment was made capriciously, or out of favouritism or on personal grounds. If it concludes that an appointment was made in that way, it is entitled to reflect that conclusion in its finding under section 98(4).

37. A great deal turned, both before the Tribunal and in this appeal, on the question whether the Respondent, having produced a job description with a person specification, was bound to adhere to it precisely. In our judgment the Tribunal by a majority plainly proceeded on the view that the Respondent was not bound to adhere to the job description slavishly or precisely. In our judgment the Tribunal committed no error of law in that respect.

38. If the appointment of a new manager had been external, an employer would not have been bound by its job description or person specification. If a candidate had emerged, perhaps from a recruitment process, who was outstanding but who did not meet some aspect of the person specification, the employer would still have been entitled to appoint that candidate. In one sense, this may have seemed unfair to other candidates who did meet the person specification; but it would not follow that the decision by the employer was unreasonable. Indeed where the appointment is at a high level, it is in our experience not unusual for the interview process to be two-way; a good candidate may suggest changes to the job description and may demonstrate that some aspect of the person specification is unnecessary.

39. When making an internal appointment, we do not think there is any rule requiring an employer to adhere to the job description or person specification. To our mind the employer was entitled to interview internal candidates even if they did not precisely meet the job description; and it was entitled to appoint a candidate who did not precisely meet the person specification. It was, in other words, entitled at the end of the process, including the interview, to appoint a candidate which it considered able to fulfil the role. We do not, therefore, see any error of law in the approach of the Tribunal to this matter; and we do not consider the approach of the majority to be perverse.

40. Nor do we consider that the Tribunal erred in law in its approach to the process which the Respondent followed. The Tribunal accepted that it was regrettable that there was no person with specific coaching experience on the panel; but as the Tribunal said, the committee was an extremely senior committee with experience of making key senior appointments.

41. The Tribunal accepted that it would have been better if the interviewing panel had followed the intended process more strictly, but after a careful review it considered that the interviewing process was objective and fair. We, like the Tribunal, are critical of the panel's failure to mark the candidates in accordance with the original plan; but we think this is a matter for the Tribunal to take into account in its assessment under section 98(4), and we are satisfied that the Tribunal did so.

42. We are therefore not satisfied that the Tribunal erred in law or reached a perverse conclusion; and we dismiss the appeal.

43. As we leave the appeal, we comment that the Tribunal, in the passages which we have already quoted, made it plain that the decision was by a majority. The Tribunal did not, however, set out the views of the minority member. It is good practice to do so: see Anglian Home Improvements v Kelly [2004] IRLR 793 and the cases there cited. It would have been good practice, and helpful, for the Tribunal to have done so on this occasion. This departure from good practice is not and could not be a ground for appeal in itself; but we draw attention to the practices described and approved in Anglian Home Improvements v Kelly.