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.