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Can an employer use subjective criteria when considering suitable alternative employment for an employee?

07 March 2012 #Employment

The EAT in Samsung Electronics v Monte D`Cruz has held that an employer is entitled to take into account subjective criteria when an employee is being considered for suitable alternative employment in a redundancy situation.

In this case, Samsung were restructuring their print division and were planning to combine four roles into one new role.  Mr Monte D’Cruz was one of the employees at risk of redundancy and he was invited to apply for the new position as well as several other new roles.

Mr Monte D’Cruz applied for one of the new positions which he believed resembled his old job and another employee also applied for the role.  Mr Monte D’Cruz was interviewed and scored using ten competencies: creativity, challenge, speed, strategic focus, simplicity, self-control/empowerment, customer focus, crisis awareness, continuous innovation and teamwork/leadership. Neither employee was successful and Samsung gave the job to an external candidate.  Mr Monte D’Cruz was subsequently dismissed on the grounds of redundancy.

Mr Monte D’Cruz brought an unfair dismissal claim against Samsung in the employment tribunal and was successful.  The tribunal questioned whether Samsung’s scoring criteria was objective and held that it should not have allowed other employees to apply for the role that Mr Monte D’Cruz had interviewed for because it was so similar to his previous role. 

Samsung appealed to the EAT.

The EAT held that the tribunal had erred in its approach to suitable alternative employment and upheld the appeal.  The EAT held that:

“Subjectivity is often used in this and similar contexts as a dirty word. But the fact is that not all aspects of the performance or value of an employee lend themselves to objective measurement, and there is no obligation on an employer always to use criteria which are capable of such measurement, and certainly not in the context of an interview for alternative employment.”

The EAT agreed with the earlier decision in Morgan v Welsh Rugby Union that:

“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.”

This case is good news for employers and confirms that employers can use an element of subjectivity when considering employees for suitable alternative employment.  Employers should however always use a fair and reasonable scoring system when interviewing employees and ensure that the employee is aware of the scoring criteria from the outset.  Employment Buddy has a helpful factsheet on interviewing employees for suitable alternative employment which can be downloaded here.


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