Employer making redundancies deciding on a pool of one without prior consultation was unfair

The Employment Appeal Tribunal held in Mogane v Bradford Teaching Hospitals NHS Foundation Trust and anor, that an employee was unfairly dismissed for reason of redundancy due to the fact her employer’s criterion for selection was that her fixed-term contract was due to be renewed before her colleague’s.

Background

The Claimant was employed by the NHS Foundation Trust as a nurse on a series of fixed-term contracts since 2016. There was also another nurse who was employed similarly to the Claimant. In 2019 the Claimant was invited to a meeting and was told by the Trust that she was going to be made redundant. The Trust told the Claimant this was because her contract was due to be renewed soonest in comparison to her colleague.

The Trust used the remainder of the process to try to find alternative employment for the Claimant but this was unsuccessful and her contract was terminated in December 2019. The Claimant brought a claim against the Trust for unfair dismissal.

Employment Tribunal decision

The Claimant claimed that she had been unfairly dismissed because she had not been fairly selected for redundancy. In particular, the pool for redundancy should not have been just her because her fixed-term contract was due to renew the soonest. The Employment Tribunal rejected her claims and so the Claimant appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal decision

The EAT allowed the appeal. The EAT stated that a consultation as part of a redundancy procedure is fundamental to the fairness of the procedure. The EAT held that a consultation must take place and in order for the consultation to be genuine and meaningful, this must happen when the employee can influence the outcome, such as prior to a decision being made.

The EAT held that to adopt one criterion which both determines a pool for those at risk of redundancy and which employee is to be dismissed is not within the band of reasonable responses and results in a process not being able to be genuine and meaningful.

The EAT determined that employers should not act arbitrarily towards employees. It determined that a pool of one can be fair in some instances, however it should not be determined without prior consultation where there is more than one employee who could form part of the pool.

The EAT therefore held that the decision to dismiss the Claimant was unfair as her colleague should have been included in the pool and the subsequent consultation process.

Conclusion

This case illustrates that employers should exercise caution when determining pools for redundancy purposes. In particular, where there is a pool of one. Employers should ensure there are genuinely no other employees who could form part of the pool. Not doing so would likely render the decision unfair, even if a genuine consultation occurred afterwards and the redundancy itself was genuine as well.