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Restructuring: Suitable alternative employment

Napthens - March 14th 2012

Samsung Electronics v Monte D’Cruz

An employer is free to choose the best candidate for a new role in a restructure process even if the decision involves some subjectivity.

Samsung re-organised its print division with the roles of 3 departmental heads being consolidated into one new single role.
The claimant, a redundant departmental head, applied for the new role. He was assessed on a presentation and scored against competencies normally used in an appraisal process. Unsuccessful in this application, he also unsuccessfully applied for a more junior role which had been created. An external candidate was appointed to this role instead.

The EAT overturned the decision of the Employment Tribunal which had found there had been inadequate consultation and the criteria for selection to the new roles had been too subjective.
The EAT held:-

  • the Employment tribunal had substituted its own view on consultation for that of the employer; and
  • in relation to the arrangements for selection to new roles, some subjectivity was inevitable, and an assessment of which candidate is best suited to perform the new role is likely to involve an substantial element of judgement

What does this mean?
This gives much needed clarity at a time when many employers are streamlining their business operations through reorganisations. Note however this decision would not apply to a female employee on maternity leave whose role is redundant. Even if she is not the best candidate for any new role, Regulation 10 of the MPL Regulations1999 is such that an employee returning from maternity leave would have first refusal of any new roles which are “suitable”.