Employment Tribunals

Redundancy selection pool of one

What are ‘redundancy selection criteria’? 

Redundancy selection criteria are fair reasons for selecting particular employees for redundancy. Fair reasons can include skills, qualifications and aptitude, and should ideally be objective and measurable. 

The redundancy selection criteria are crucial in ensuring that a redundancy process is fair and lawful.

To help ensure employees are selected in a fair way, an employer should use a selection pool of employees doing the same or similar work to the extent they are interchangeable (can do each other’s work). If there is only one employee affected, they are classed as “self-selecting” and no selection pool is required.

In deciding which employees to make redundant, an employer must choose and apply appropriate criteria and pool, if appropriate.

Failure to select employees for redundancy in a fair way can result in unfair dismissal 

Made redundant because the contract ended sooner than that of a colleague

In a recent Employment Appeal Tribunal (EAT) case – Mogane (M) v Bradford Teaching Hospitals NHS Foundation Trust , the EAT considered whether it was fair to make a nurse redundant on the basis that her fixed-term contract was due to expire before that of her colleague. 

M, the claimant and a Band 6 nurse, along with another similarly qualified nurse, were employed by the Trust on fixed-term contracts. 

In March 2019, due to financial circumstances of the unit in which both nurses worked, the Trust made the decision to reduce staff and make M redundant. 

M took the case to the Employment Tribunal as she believed her redundancy was unfair. 

The nurses’ contracts

M had been employed by the Trust since 2016 on a series of one-year contracts. The most recent one was due to expire on 1st June 2019. 

The second nurse had been employed for the first time on a two-year fixed-term contract shortly before the redundancy process commenced. Therefore, their contract was due to expire after M’s contract. 

Redundancy decision made without consultation

As the Trust struggled financially, they invited M to a meeting to inform her of the financial difficulties they faced. 

Shortly after the meeting, the Trust made the decision that M should be made redundant given that her contract was due to expire first.  

Unfortunately, no consultation took place prior to the redundancy decision being made deciding that the date of expiry of the contract would be the sole determining criterion used by the Trust. 

This effectively identified M as the person to be made redundant from her job. 

Following the Trust’s decision, a consultation with M took place regarding suitable alternative employment. However, none could be found. 

The Employment Tribunal’s decision

M took her employer – the Bradford Teaching Hospitals NHS Foundation Trust, to the Employment Tribunal. 

The Tribunal, however, dismissed her claim and deemed the dismissal fair. 

As M felt the Tribunal’s decision wasn’t satisfactory, she appealed the case at the EAT.

The Employment Appeal Tribunal’s decision

The EAT upheld M’s appeal and decided that the dismissal was in fact unfair. 

It noted that consultation is a fundamental aspect of a fair redundancy procedure – in which case the Trust didn’t follow. 

Furthermore, for a consultation to be genuine and meaningful, it needs to take place at a stage when an employee (or their representative) can still potentially influence the decision. 

IM was not given this opportunity as no consultation with her present took place prior to the Trust making the decision. Her redundancy had already been decided before she was told about it which left her with no option but to accept it. 

Moreover, the EAT found that it was not reasonable to adopt only one selection criterion for the redundancy which simultaneously decided the pool of employees and which specific employee is to be dismissed. The EAT noted that employers should not act impulsively when it comes to selecting employees for redundancy.

Lastly, the Trust’s decision to dismiss M whose contract was about to expire, immediately identified her as a pool of one and, therefore, as the person to be dismissed before any level of consultation took place with her. While in some circumstances a pool of one can be fair, the EAT found that, in M’s case, it should not be considered (without prior consultation) where there are multiple employees. 

The redundancy selection pool of one

Although the EAT didn’t specify that the selection pool for redundancy should have been expanded to include the other Band 6 nurse, they referred to the Trust’s decision (and the consequence of their choice) as “an arbitrary choice”. 

Whilst it is not the Tribunal’s role to interfere with any employer’s decision as to the pool, Employment Tribunals need to be satisfied that the pool chosen was one that any reasonable employer could adopt in all the circumstances.  

Choosing only fixed-term employees for redundancy purely on the basis of their fixed-term employment status could also amount to less favourable treatment under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, unless their selection can be objectively justified. 

Employment terminated unfairly? 

If your employment had been terminated by your employer by reason of redundancy and you believe the process they adapted was unfair, please don’t hesitate to get in touch with our experienced employment law solicitors for an assessment of your case. 

We work on a No win No fee basis, which means there are no upfront costs for you to pay. 

Covid-19 vaccine refusal - nursing home worker fairly dismissed for refusing the vaccine-2

A nursing home worker fairly dismissed over Covid-19 vaccine refusal

Despite accepting Ms Allette’s (A) scepticism, Employment Tribunal has found her ‘fairly dismissed’ by her employer for Covid-19 vaccine refusal. 

The requirement to be vaccinated was in the Tribunal’s opinion a reasonable management instruction and A had no medical authority or clinical basis for refusing. 

Nursing Home’s requirement to get vaccinated

In December 2020, the Scarsdale Grange Nursing Home (SGNH) was due to begin the roll-out of the Covid-19 vaccine to its residents and staff.

Unfortunately, just before the roll-out, the nursing home was hit with an outbreak. The outbreak resulted in 33 staff (including A) and 22 residents being infected, and a number of resident deaths.

The vaccinations consequently had to be rescheduled from December 2020 to January 2021.

In order to ensure the staff get their vaccinations, SGNH made it a condition of continued employment.

At this point, there was no statutory obligation on care home workers to be vaccinated. 

The nursing home worker’s refusal to have the covid-19 vaccine administered

Ms Allette (A) claimed to only become aware of the vaccine roll-out and the continued employment condition on 12 January 2021 – the day before her vaccination was due to be administered.

A refused to have the vaccine providing the following reasons in a telephone call with the home’s director: 

  • She did not trust the Covid-19 vaccine’s safety,
  • The vaccine had been rushed without adequate testing,
  • She had read stories on the internet about a Government conspiracy,
  • No one could guarantee that the Covid-19 vaccine was safe. 

Refusal of the Covid-19 vaccine leading to a disciplinary hearing

Following A’s refusal of having the vaccine administered, a disciplinary hearing was arranged for 28 January. 

During the hearing, for the first time, A indicated that the vaccine was against her Rastafarian beliefs. The home’s director had not known before that point that A was a practising Rastafarian. 

The director explained to A that their insurers had advised them they would not provide Public Liability insurance for Covid-related risks after March 2021. Consequently, the nursing home would face the risk of liability if an unvaccinated staff were to infect other staff, residents or visitors.

Following the hearing, the director concluded that A did not have a reasonable excuse for refusing the Covid-19 vaccine. If she remained unvaccinated, she would pose a risk to the health of the home’s residents, staff and visitors. 

A decision was made that the home could not make an exception for one member of staff and her dismissal followed. The dismissal was on the grounds of refusing to follow reasonable management instruction.

A subsequently took her employer SGNH to the Leeds Employment Tribunal claiming unfair and wrongful dismissal. 

Employment Tribunal claim for unfair and wrongful dismissal for refusing the Covid-19 vaccine

In A v SGNH, the Employment Tribunal has found that the dismissal of A for refusing to be vaccinated against COVID-19 in January 2021 was fair. 

The tribunal accepted that SGNH’s primary legitimate aim was to protect its staff, residents and visitors.

The secondary legitimate aim – to avoid the risk of breaching the home’s insurance policy, was also accepted by the Tribunal.

The Employment Tribunal’s decision explained

In the employment tribunal’s view, the home’s new mandatory vaccination policy was in line with a pressing social need of reducing the risk to residents. 

A’s fear and scepticism about the vaccine were considered genuine. However, the Tribunal noted that they were unreasonable in the circumstances since she had no medical authority or clinical basis for not receiving the vaccine. 

In addition, the nursing home SGNH was a small employer with a legal and moral obligation and responsibility to protect its vulnerable residents. Most of them suffered from dementia and needed to be protected.

The Employment Tribunal, therefore, accepted SGNH’s submission. Its decision to impose vaccination in January 2021 had to be seen in light of the more limited state of knowledge about vaccines and the progress of the pandemic at that time. 

Given the nature and type of SGNH’s business and considering the vulnerability of its residents, the director of the nursing home was required to do some difficult decision-making. In the context of the case, the interference with A’s private life was considered proportionate.

In terms of the reasonableness test under S.98(4) of the Employment Rights Act 1996, read so as to give effect to A’s Article 8 rights, the tribunal made the decision that it was reasonable for the nursing home’s director to conclude that an employee who was only sceptical of the official advice did not have a reasonable excuse for refusing to follow the management instruction to have the Covid-19 vaccine administered.

The Tribunal also found that the director genuinely did not believe that his employee’s refusal was connected with religious belief as she did not disclose this information until later. 

Moreover, the Tribunal rejected A’s argument that the home’s director had unreasonably failed to inform her about the vaccine and to properly address her scepticism. It was found that he had referred her to advice from Public Health England (PHE) and the Government, which was widely available on the internet. It was concluded that A was capable of researching independent scientific material for herself.

During the tribunal hearing, it was presented to the director that there was no real benefit to be obtained from vaccinating A since she had recently recovered from Covid-19 and therefore would have antibodies. However, the tribunal accepted the director’s evidence that the advice from the PHE at the time was that it was possible to contract and transmit Covid-19 more than once.

In the circumstances, the employee’s dismissal was within the range of reasonable responses. 

Read the full transcript of the case here.

Have you been unfairly or wrongfully dismissed by your employer? 

If you believe you have been unfairly or wrongfully dismissed by your employer, get in touch with our expert Employment Law Solicitors today to discuss your case. You can either call us on 0800 612 9509, or complete one of our contact forms. Alternatively, complete our Employment Tribunal Claim Assessment. 

Inner house concludes school fairly dismissed teacher

Inner house concludes school fairly dismissed teacher suspected of possessing indecent images.

Despite being cleared of the charges, the teacher was dismissed due to safeguarding concerns. Was his dismissal unfair?

No, concluded the Inner House of the Court of Session in L v K.

Case background

The case concerned a teacher who had been arrested for possession of a computer containing indecent images of children.

The teacher shared the computer with his son but ultimately the charges against the two were dropped.

The teacher informed his employer – the school, as to what had happened which led to an investigation.

At an investigatory hearing, the teacher stated he did not recall where he had bought the computer. He also said that his son had access to the device and that the police had told him it contained illegal material.

Following the hearing, disciplinary proceedings were initiated by the school.

The primary reason for the teacher’s dismissal was that while it couldn’t be proved the teacher had downloaded the images onto his PC, the fact alone that he may have done it gave risk to a safeguarding concern.

Moreover, the school was also concerned that the situation would affect their reputation. Breakdown of trust was also cited.

The dismissed teacher appeals the decision

Following the dismissal, the teacher made a claim of unfair dismissal in the Employment Tribunal (ET).

The ET, however, was satisfied that the reason given for the respondent’s dismissal was in fact genuine and substantial. It said that the school’s decision, while difficult, was responsible.

The teacher was not content with this outcome and appealed the ET’s decision.

The 5 grounds came to the view; that he could only be fairly dismissed by the school if the evidence indicated and the school was satisfied that he was responsible for downloading the images.

A decision of unfair dismissal was subsequently substituted for the original verdict of the ET.

On appeal of this decision to the Court of Session, it was submitted for the school that the Employment Appeals Tribunal (EAT) had in fact erred in its approach to the appeal.

One of the arguments against the teacher’s stance included a denial that there were any indecent images on his computer. This was a position inconsistent with his earlier statements and therefore rejected by the ET.

Furthermore, the EAT had not engaged with the issue of the school’s statutory duty to protect children which was an imperative part of the school’s decision to dismiss the teacher.

The Final Decision

The Court of Session concluded that in some circumstances it will be reasonable for an employer to dismiss an employee who may be innocent if there is a genuine and substantial reason to justify the dismissal. This was in fact such case.

Lord Malcolm, who delivered the court’s decision, said there was a proper basis for believing that the teacher was probably guilty.


You can read the full court transcript here.

Tribunal Procedure.

Wrong Early Conciliation number stated on a Form ET1 is potentially fatal.

The ET was concerned with two claims lodged by the Claimant. The first gave an incorrect ACAS early conciliation (“EC”) number – relating to a different Claimant and a different claim; the second gave the number of an EC certificate that was invalid. Neither had been rejected by the ET under Rule 10 ET Rules nor had the claims been referred to an Employment Judge under Rule 12. At a Preliminary Hearing before the ET, the Claimant applied to amend his claim to correct the ACAS EC number. The ET allowed the application, see this as consistent with the overriding objective and the general principle of access to justice given that this was a minor amendment to rectify a technical error. The Respondent appealed.

Held: allowing the appeal

The Claimant’s claims failed to include an accurate ACAS EC number and were thus of a kind described at Rule 12(1)(c) ET Rules. Pursuant to Rule 12(2), the Employment Judge was therefore required to reject the claims and return the claims to the Claimant; that was a mandatory requirement that was not limited to a particular stage of the proceedings. As this would mean that there was no longer a claim before the ET, the Employment Judge had no power to allow the Claimant to amend; the correct procedure was instead that laid down by Rule 13. The Claimant argued that the ET’s decision could be upheld by virtue of Rule 6, read together with the overriding objective. Rule 6 could not, however, import a discretion into a mandatory Rule Cranwell v Cullen UKEATPAS/0046/14, [2015] UKEAT 0046_14_2003 and Baisley v South Lanarkshire Council [2017] ICR 365 applied. Moreover, Rule 6 applied to ET proceedings but the mandatory rejection and return of the claim under Rule 12(2) meant that there were no proceedings before the ET.

It is potential misconduct for an employee to covertly record a meeting unless the most pressing of circumstances.

There was a time when an employee – or for that matter an employer – had to go to a great deal of trouble to record a meeting covertly. At that time it would be straightforward to draw the conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage. But in our judgment times have changed. Most people carry with them a mobile telephone which is capable of making a recording; and it is the work of a moment to switch it on. In our collective experience it is now not uncommon to find that an employee has recorded a meeting without saying so. In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere. 78.We do not think that an ET is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation. There may, as Mr Milsom recognised, be rare cases where pressing circumstances completely justified the recording. The extent of the employee’s blameworthiness may also be relevant; it may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change. 79.That said, we consider that it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so. We think this is generally recognised throughout employment except perhaps by some inexperienced employees. This practice allows both sides to consider whether it is desirable to record a meeting and if so how. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management. It may be better to agree the outcome at the end. Sometimes if a meeting is long a summary or note will be of far more value than a recording which may have to be transcribed.

In Flowers -v- East of England Ambulance Trust [2019] EWCA Civ 947 – the Court of Appeal held that voluntary overtime should be counted when calculating holiday pay if it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration.

Employment Law covers many different aspects of employer responsibilities and employee rights, including contracts of employment, hours of work, Statutory Sick Pay and dismissal. Your employer should comply with employment law else they are at risk of employment tribunal claims. Let’s take a look at 20 key facts about employment law, that your employer should be abiding by:

  1. Your employer must register with HMRC (HM Revenue & Customs) before their first pay day when taking on their first employee. A payroll must be run and employees should be issues payslips outlining earning before and after deductions and include all detail of Tax and National Insurance. Payroll information must be reported to HMRC every time an employee is paid and they must pay any tax and National Insurance owing.
  2. An employer must ensure that all employees have the legal right to work in the UK and keep copies of all provided documents, before they start working.
  3. Within a two month period of starting work, employees are entitled to a written statement of employment terms, however if you are employed for less than one month you are not entitled to such.
  4. The terms of an employment contract can only be changed by an employer if they have reserved the right to do so or the employee has given agreement or consent. Any alterations to the contract must be agreed by both parties with written confirmation within one month of the change taking effect.
  5. A contract of employment exists once a potential employee has accepted an unconditional offer of employment, which is often before they have commenced employment
  6. A probationary period of three to six months is typical, with the period being long enough for an employer to reasonably judge whether an employee can do the job.
  7. Minimum wage applies to almost all employees, whether casual, part-time, full-time or agency workers. Workers aged 25 and over are entitled to the National Living Wage, which is £7.83 per hour. There are also four different hourly rates for National Minimum Wage, which are: £7.38 for workers aged 21 to 25, £5.90 an hour for 18 to 21-year-olds, £4.20 per hour for 16 and 17-year-olds, £3.70 for apprentices under 19 or older than 19 but in the first year of their apprenticeship.
  8. You are entitled to 5.6 weeks’ paid holiday per year as an employee (at least 28 days a year for a full time employee). Part-time employees are entitled to the same holiday, but on a pro rata basis. Holiday entitlement begins to accrue from the first day of employment and accrues even through periods of absence such as sick leave or maternity.
  9. SSP (statutory sick pay) is £92.05 per week but it isn’t uncommon for an employer to pay more than this amount. If an employer believes you are not genuinely ill or you do not comply with notification requirements, they are entitled to refuse to pay SSP.
  10. Employees must be ‘auto-enrolled’ into a workplace pension and an employer must also contribute unless an Employee specifically opts-out of the scheme.

If you believe you have received poor treatment in the workplace by your employer, or any other grounds for a claim, you will be faced with the choice of whether you should pursue an Employment Tribunal Claim or try to settle your claim, usually via a ‘settlement agreement’ contract.

Let’s break down the most important factors to consider when deciding which avenue to take.

  1. What potential claims do you have, and how likely are those claims going to be successful?
  2. What outcome are you seeking from an Employment Tribunal Claim?
  3. Is settlement an option for you, or is an Employment Tribunal Claim a point of principle?
  4. What impacts could a claim have on you in the long term?
  5. How committed are you to the process an employment tribunal claim?

What potential claims do you have and how likely are those claims going to be successful?

The first step is to determine what potential claims you may actually have based on the circumstances of your case. Have you been a victim of workplace harassment, discriminated against, victimised or unfairly dismissed?

The nature of claims you choose to pursue will of course have a significant impact on your chances of success and the value of any Employment Tribunal Claim. You will also need sufficient evidence to reinforce the particular claim(s).

What outcome are you seeking from the Employment Tribunal Claim?

Generally speaking, if you are only pursuing an Employment Tribunal Claim to seek compensation (a financial payment),  it is more likely that you will be able to settle your claim. If you are looking for another form of remedy, however, then you might have to seek this through a successful claim in the Employment Tribunal (as it is normally difficult to persuade an employer to re-engage you through a settlement agreement).

Is settlement an option for you or is the Employment Tribunal Claim a point of principle?

There is very little point in entering into a settlement agreement negotiation if you aren’t interested in a settlement. If you are strongly set on not settling from the get-go, then your time and effort are best focused on preparing your Employment Tribunal claim.

On the other hand, if you are open to settlement, then it is best to approach the other party at an early stage to negotiate and agree upon the terms of the settlement.

What impacts could a claim have on you in the long term?

The public nature of an Employment Tribunal should be considered as early as possible. All Employment Tribunal judgements are now published online and the parties to the litigation will therefore want to think carefully about what impact any publicity could have on their careers or business.

How committed are you to the process of the employment tribunal claim?

The process of an employment tribunal claim can be stressful and daunting. However, using a no win no fee employment solicitor like ourselves, your stress can be alleviated as we guide you through the entire process from initial assessment to making a claim.

A whopping £390,000+ worth of employment tribunal claims went entirely unpaid last year following the employers in question being placed in administration or being dissolved or liquidated. Experts have stated that these figures may indicate the continued struggle with ‘phoenixing’ businesses avoiding tribunal debts.

It was revealed, thanks to figures from the Department for Business, Energy and Industrial Strategy (BEIS) by People Management under a freedom of information (FOI) request, that 56 awards (worth a total of £394,505) were unpaid due to insolvency in 2017. This figure was broken down further, bringing to light that of the 56 unpaid awards two (worth £20,695) were unpaid due to administration, twenty six awards (worth £87,544) went unpaid due to dissolution and twenty eight awards (worth £286,267) were unpaid because of liquidation.

A company is placed in administration as a means of attempting to save it from insolvency. This involves control being handed over to an administrator, who will attempt to pay off, or reach a deal with, as many creditors as possible, as to reduce the company’s debts.

A company is liquidated when, as a means to pay off debts, its assets are sold off. This usually occurs after administration is unsuccessful. Finally, a company is dossolved once it is struck off the Companies House register.

The particular companies in question were not revealed, however the figures suggest that there is a continued issue of ‘phoenixing’, the unscrupulous practice of company owners avoiding tribunal awards or other penalties by making their business insolvent only to set up a very similar, new company afterwards.

Croner associate director, Paul Holcroft stated ““In the current climate, where we hear of town centres being depleted of their shops and pubs at an alarming rate, there will be very many genuine insolvency situations which mean tribunal awards go unpaid, however, with the possibility that ‘phoenixing’ is contributing to that number, employers may well be intentionally circumventing the system.”

“Without detailed analysis, it is difficult to tell which are genuine insolvencies and which aren’t, but anecdotal evidence from claimants has suggested that many insolvent ex-employers are now trading again.”

It’s clear that phoenixing is a common problem that continues to grow. However, the Taylor Review on Modern Working Practices, which was published in July 2017, called for the government to take further action against companies which dodged paying tribunal awards, and to establish a “naming-and-shaming” system for those who did not pay awards within a reasonable time period.

As stated on gov.uk, UK law allows directors, owners and employees of insolvent companies to set up brand new companies and carry on a similar business as long as the individuals involved aren’t personally bankrupt or disqualified from acting in the management of a limited company.

Last week a 98 page White Paper was released that outlines the UK Government’s suggestion for the future relationship between the UK and EU. Also, the post-Brexit status of the UK’s employment legislation derived from European Union law appears to be no longer in doubt. The document indicates that there tends to be no intention to repeal or amend equality or employment law, including a commitment to the “non-regression” of labour standards. This “Brexit Blueprint” also states that the European Court of Justice (ECJ) won’t have any further sway over the UK’s legal decisions, therefore bringing accountability of UK laws back to the UK.

The paper states that “existing workers’ rights enjoyed under EU law will continue to be available in UK law at the day of the withdrawal”, referring to the United Kingdom’s plan for their relationship with the EU in the future by suggesting that it will commit to a “non-regression of labour standards”. Therefore any UK employment laws which are based on EU law will remain unchanged after Brexit.

The blueprint offers a new framework where EU workers who are previously established can apply for ‘settled status’ and remain in the UK. Any Irish workers can remain in the UK indefinitely under ‘special status’ – Irish and UK citizens alike will be able to freely move between the UK and Ireland (the Common Travel Area). However, without an agreement in place, EU and UK workers will no longer be able to freely move between each other’s countries without certain restrictions.

There has been an indication that there will be a commitment to a “mobility network” so that EU and UK citizens can travel between their countries to work and study. However

Whilst the white paper supports the notion of there being ‘no automatic right’ to work in the UK, it does suggest that possible ‘reciprocal arrangements’ could take place that would mean businesses can relocate “talented staff” in particular situations.