Arhin v Enfield Primary Care Trust
Dr Arhin was employed as a consultant and assistant director by Enfield Primary Care Trust. In 2006, the trust undertook a reorganisation that resulted in Dr Arhin being made redundant on 30 June 2007.
Another doctor employed in the same two capacities, Dr Stewart, was retained. Dr Arhin brought claims for unfair dismissal and race discrimination. The tribunal found that she had not been discriminated against but had been unfairly dismissed.
The tribunal said that, although there was a genuine redundancy situation, the trust acted unfairly by failing to put Dr Arhin and Dr Stewart in a pool to enable a competitive selection procedure to take place. The trust had carried out a "slotting in" exercise, which was not appropriate where more than one employee was eligible for the new post.
However, the tribunal made a 100% Polkey deduction and awarded no compensation on the basis that Dr Arhin had no chance of achieving the post in a competitive selection procedure. The tribunal made findings of fact that Dr Arhin would have been dismissed in any event, due to long term-sickness absence, and that Dr Stewart had more relevant experience which would better fit the post-reorganisation structure. Dr Arhin appealed to the Employment Appeal Tribunal and subsequently to the Court of Appeal.
The Court of Appeal dismissed the appeal. It held that there was sufficient evidence before the tribunal to form a tenable view of what the outcome of a fair competitive selection procedure would have been and the tribunal's decision that such a procedure would not have led to Dr Arhin being appointed was not perverse.
"Slotting in" is a common process in the public sector, whereby appropriate employees are identified to fill new roles in a reorganised structure without undergoing competitive application or selection.
It may be appropriate, for example, for posts to be filled by a simple slotting-in process where there are the same number of posts in the new structure and these posts remain wholly or largely unchanged to the roles that the employees potentially at risk were carrying out.
As identified in this case, it will not be appropriate where there is more than one employee who is eligible for the new role.
Where an employer has failed to carry out a competitive selection exercise where one was required, it will be rare, but not impossible, for the tribunal to be able to say that the claimant would not have been appointed, leading to a 100% Polkey deduction. The question is not whether or not the tribunal can predict with confidence all that would have occurred; rather it is whether or not it can make any assessment with sufficient confidence about what is likely to have happened, using its common sense, experience and sense of justice.
Alan Chalmers, partner, DLA Piper