Barrett View #2

Downsizing, and making incumbent employees apply for their own job: A matter of professional negligence?

A recent New Zealand employment court ruling (2011) between the vice-chancellor of Massey University (Plaintiff) and two defendants (made redundant university lecturers) is of interest (the judgment is available for download here). As paraphrased recently by Keith McGregor (Director at Personnel Psychology NZ Ltd. on ionet:

"The essence is that when interviewing current employees in a downsizing exercise the candidates are entitled to access all interview notes and all information relating to the other candidates and can have access to any information inside the heads of the interviewers that was relevant to the selection decision. Information may be confidential but unless there is a ‘good reason’ to withhold it must be released. Furthermore in order to decide if information is ‘relevant’ access must be provided to all of the information to enable that assessment... Judgment was published on 18 April 2011 and may yet be appealed."

While the judgment is interesting with regard to privacy issues, it brought my attention to the more fundamental issue of downsizing accompanied by asking incumbent employees to apply for their own job. This normally happens where the number of employees must be reduced in one or more sectors of an organization, with HR opting to make incumbents compete as “applicants” against one another for the job they currently hold, with applicant interviews part of that process.

I don’t think asking incumbent employees to re-apply for their job is acceptable, except under one condition:

The job (and its duties, responsibilities, and operational functions) they are currently engaged in will no longer exist. That "no longer exist" translates to:

1. the current job is being completely dis-established. e.g. the company will no longer undertake its own equipment repair functions, or its office cleaning, or its specialist sales team for a no-longer-to-be-sold product.

2. the current job is being changed substantially into a new job, where existing duties etc. are being augmented with significantly new functions and responsibilities, which have not been part of the existing position.

Given #1, it is entirely reasonable that those staff hoping to do another different job within the company should be asked to apply in competition with others. Given #2, it is important for the company to clearly identify the new job requirements-duties, making sure these are "significantly" different from those already being undertaken by the incumbents. Further, the company may decide that specific cognitive-personality attributes may be required to fulfil these new tasks (over and above those already possessed by the incumbents) for which new psychometric or other kinds of assessment may be required.

However, simply “bringing in” psychometrics as an excuse to produce some numbers which can be used to discriminate between incumbents is a potentially dangerous approach, because of the fundamental inaccuracy of psychometric tests per se. In some situations they make sense, sometimes not. And, weaving them coherently into a decision process is actually quite complex if you are not to leave yourself exposed to facing someone like me as the opposing expert-witness in an employment court.

So, great care needs to be shown here by the company in determining just how different and significant are the new duties, and the actual relevance of any new person characteristics over and above what might already be possessed by incumbents. Justification for both should be with an eye to convincing a court (or any disinterested 3rd party) that your reasoning is coherent, reasoned, and fair. Indeed, seeking legal and/or union opinion is one way of establishing the coherence of your reasoning behind the processes you seek to instantiate.

Otherwise, you do not ask incumbent employees to re-apply for their own job. Period.

It is both humiliating and insulting because these people have all been doing their job well-enough to the extent that the employer has not found reason to sack them before now. This does not mean that all are performing adequately, or are model employees. It just means they have "kept their noses clean" to whatever extent required to make it difficult, if not impossible, for an employer to sack them.

Under the kind of "look, we can only afford to pay 4 out of 6 of you in future" scenario, you evaluate each employee based upon their past performance (across those features which are considered definitive of job performance), using a mix of performance records, relevant objective attributes (numbers of publications, sales, widgets made, safety record etc.), and ratings by supervisors or external independent raters (who rate from written employment records/information if these contain relevant performance information). If rating, every person has to be rated by multiple raters - and only attributes rated the same (or very similarly) by a majority of raters are used in any decision process.

In short, you do not humiliate someone who has been doing the job very successfully for say 5 years by making them compete with their colleagues in what amounts to a sham interview situation. Instead, you take steps to agree with all parties (the incumbents, unions, spokespeople) about how you will assess the incumbents (precisely how; not some fudged, purposefully vague set of procedures), and proceed on that agreed basis. And yes, it takes real leadership here.

You also indicate that it is quite possible all incumbents may well end up with the same ranking or feature score, because either insufficient information of a suitable veracity is available to make the necessary distinctions, or, all incumbents really are performing at the same level. Under these "terminal" conditions, job-loss will be via a random number sequence - because there is no other rational way of making a fair and reasoned decision.

You laugh? Why? When there is no other rational way of making a decision, but that decision has to be made, what can be fairer than an unbiased random selection procedure?

It's a clean, honourable, open process which treats employees with integrity and respect. It is also implemented openly and honestly from day 1. It is entirely transparent to any 3rd party evaluation because 3rd-party evaluation has been foremost (and maybe even present as with unions) in designing the process.

You can't make these things any more upsetting that they are - but you can treat incumbent employees with dignity and respect. You are about to seriously disrupt the lives of a subset of your employees.

I can't comment on the Massey case as the complete background details are unknown to me - but the above seems to take care of the majority of situations like this which arise.

And that is where counsel might in future focus their arguments on these processes in an employment court, not on the procedural details (as per the Massey case) but directly on an issue of professional negligence and/or incompetence by those instituting such procedures if #1 and #2 above did not hold. If successful, this kind of “professional standards-competence” approach cannot recover jobs which must be lost, but it would at least force HR to make the "downsizing" a more fair, honourable, dignified, and reasoned process.

Quite frankly I'm sick to death of the test publishers, consultants, and organizational HR who instigate/take-part in this incompetent, professionally negligent, and unecessarily hurtful practice. The other word describing the process, which may focus the minds of those contemplating it is: "malpractise".

updated 7th September, 2016