Louise McAloon, Associate Partner with Worthingtons Solicitors Belfast discusses an EAT decision in which recruitment and Selection practices were scrutinised
The Employment Appeal Tribunal (EAT) in England produced a very surprising decision concerning the interview process adopted by The Welsh Rugby Union in the appointment of a National Coach Development Manager. (Morgan –v- The Welsh Rugby Union UKEAT/0314/10)
The Claimant was made redundant by the Rugby Union as a result of an internal re-organisation and along with 2 others, applied for a new post of National Coach Development Manager. Another candidate was appointed to the post and dissatisfied with the selection process; Mr Morgan proceeded to Tribunal claiming unfair dismissal.
The Tribunal dismissed Mr Morgan’s claim and the EAT rejected his subsequent appeal despite a number of fairly significant deficiencies in the selection process: There was no person with specific coaching experience on the panel. The “person specification” required the person to be “qualified to at least WRU Level 4 or equivalent” which the successful candidate was not. Candidates were asked to prepare a 10-15 minute presentation in relation to the provision of coaching in Wales over the last ten years. The successful candidate gave a presentation of much greater length. The interview panel did not hold him to the set timescale nor did they produce individual scores for the presentation or for individual questions, despite having prepared standard questions with a set scoring system. The panel simply gave overall scores and given the length of the successful candidate’s presentation, he was not asked individual questions in the manner envisaged when the interview was planned. The Claimant’s average score was only 6% below that of the successful candidate.
The Tribunal found that whilst on paper it appeared that the Claimant had the greater experience and qualifications, the interviewing process played an important role and resulted in the selection of the candidate who appeared less strong on paper. The Tribunal found no evidence of bias, partiality or capriciousness and after careful review deemed the process objective and fair.
Interestingly the EAT took the view that an employer was entitled to interview and appoint a candidate even if they did not precisely meet the job description. An employer was, in the EAT’s opinion, entitled to appoint a candidate which it considered able to fulfill the role. Whilst both Tribunals were certainly critical of the panel’s failures, in particular, to mark the candidates in accordance with the original plan, Mr Morgan unfair dismissal claim was ultimately unsuccessful.
Whilst not binding on Tribunals here in Northern Ireland, EAT decisions are certainly of persuasive value and this decision will no doubt raise eyebrows with all those involved in recruitment, selection and equality training. It is however important to note that this was an unfair dismissal claim as opposed to a discrimination claim; which involves consideration of such issues against an entirely different and more robust legal framework.
Had such deficiencies arisen in the context of a discrimination complaint, I suspect the result may well have been very different, as employers over the years in this jurisdiction have learned to their detriment. Employers with concerns in relation to redundancy or recruitment and selection matters should always seek professional legal advice.
Louise McAloon is an Associate Partner with Worthingtons Commercial Solicitors, Belfast specialising in employment law.