When a ‘Pool of One’ was held unfair in a redundancy selection process.

When a business is faced with the difficult decision to make staff redundancies, one consideration which may need to be addressed is what the ‘at risk’ pool of employees may look like. Pooled redundancy cases refer to situations where an employer is making staff redundant who undertake similar work, and as an employer you have to make a choice between which employees are made redundant.

Identifying the ‘at risk’ pool of selection is part of the redundancy process which is generally accepted as being at the discretion of the Employer and one that a Tribunal will not interfere with – providing of course the pool can be objectively justified.

However, in the recent case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust and anor, the Employment Appeal Tribunal (EAT) decided that where the Employer’s sole criterion for selection, adopted without prior consultation, was that an Employees fixed-term contract was due to be renewed before that of her colleague, resulted in a claim for unfair dismissal being upheld.

The facts of the case as reported in a recent Employment Lawyers Association update are as follows:

“M was employed by the Trust as a Band 6 nurse on a series of fixed-term contracts since 2016. Another Band 6 nurse was also employed on fixed-term contracts. In March 2019, M was invited to a meeting and told that the Trust faced financial difficulties. Shortly after, the Trust decided that M should be made redundant as her contract was the one that was due to be renewed soonest. The remainder of the redundancy process related to an attempt to find alternative employment for M but, when that was unsuccessful, her contract was terminated in December 2019. M claimed unfair dismissal.

The Employment Tribunal rejected M’s claim, finding that she had been fairly selected for redundancy. However, the decision was appealed and the EAT overruled the finding. It was concluded that in the absence of consultation, to adopt one criterion which simultaneously decides the pool of employees and which Employee is to be dismissed is unfair. The EAT went on to conclude that a fair redundancy procedure requires that consultation take place at a stage when the Employee can still potentially influence the outcome. Where the selection criterion adopted immediately identified the Employee to be made redundant, consultation should take place prior to that decision being made.”

Probably a reflection of the current uncertain economic market, but we are finding that more Employers are requiring advice on redundancy.

In order to ensure a fair process of selection we would always advise that any selection criteria are agreed with the Employees at risk as part of the initial consultation process, and before any decisions on who is selected for redundancy is made.

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