Does an employer require to consult before deciding on a pool of one?

Yes, says the Employment Appeal Tribunal (EAT) in a decision last week – overturning an Employment Tribunal, which had concluded that the dismissal of a nurse by redundancy was fair, even though there had been no consultation on the fact that she would be in a pool of one for selection. Julie Sabba, an associate in our Employment Team considers the implications of the judgement in Mogane v Bradford Teaching Hospitals NHS Foundation Trust.

Facts

Here, the employer based its selection criteria solely on the fact that Ms Mogane’s fixed-term contract had ended before that of her colleague, meaning that the redundancy selection pool had only included her.

No redundancy consultation had taken place before the selection decision, instead it was conducted after the fact.

Law

It is clear that, where there is no consultation on a collective level, the employer is required to consult individually on:

• the individual’s selection for redundancy, and

• whether there are alternatives to redundancy.

Generally, the requirement to consult with the affected individual has focused on the issues of selection criteria or ways to avoid a redundancy situation altogether. This case extends that requirement to include consulting on the pool for selection, where the decision means that the pool for selection is likely to be a pool of one.

Decision

The EAT confirmed that consultation is a fundamental aspect of a fair redundancy procedure, and this applies equally to individual as well as collective redundancy situations. The consultation procedure is not a ‘tick-box’ exercise, therefore, it must take place at a time when the employee has a realistic chance of affecting the outcome.

In situations where the selection process basically confirms who will be dismissed, consultation should take place before the selection is made.

Comment

It is largely considered that this decision may be contested in the future, as its practical effect could be to push employers to artificially widen pools for selection, to avoid having to consult on the decision to have a pool of one. Indeed, such an approach, which suggests expanding a pool for selection and thereby including a greater number of employees, could lead to more upheaval and uncertainty than is necessary in a redundancy situation, increasing the chance of legal challenge and risk for employers.

Our advice to employers is to obtain legal advice early in the redundancy process, to garner assistance in getting the key decisions, such as appropriate pools for selection, correct, whilst taking account of the specific circumstances and requirements of your business.

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.