In the case of Samsung Electronics (UK) Ltd v Monte-D'Cruz [2012] UKEAT 0039/11, the EAT has confirmed that when an at risk employee is being considered for suitable alternative employment in a redundancy process, the employer has considerable flexibility when assessing the individual's suitability for the role. The assessment process may use subjective criteria and the employer may appoint who it considers is best for the job.
In this case, the claimant, who was at risk of redundancy, applied for a role in the revised team structure which he felt strongly resembled his old job. He and another internal candidate were interviewed but Samsung decided to appoint an external candidate. The interviewees were scored using competencies from the annual assessment process, which included creativity, challenge, speed, strategic focus, simplicity, self-control/empowerment, customer focus, crisis awareness, continuous innovation and teamwork/leadership.
The Tribunal at first instance found that the employer's approach to alternative employment was flawed and criticised the objectivity of the criteria used. Samsung appealed and the EAT has now confirmed that the Tribunal erred in its approach to suitable alternative employment. The EAT confirmed that the approach taken in the case of Morgan v Welsh Rugby Union [2011] IRLR 376, which accepted that an employer's assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment, is the correct approach and confirmed that there is no obligation to use purely objective criteria in the context of an interview for alternative employment.
Comment: The approach taken in this case for alternative employment should not be confused with that to be taken in the context of the scoring of employees to determine who is provisionally at risk of redundancy. In the initial scoring exercise, the criteria used should as far as possible, be capable of objective assessment, for example, by reference to appraisal scores and by avoiding the use of criteria such as "attitude". http://www.bailii.org/uk/cases/UKEAT/2012/0039_11_0103.html
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