Redundancy consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one (EAT)

James Williams

The Employment Appeal Tribunal (EAT) has ruled a dismissal was unfair when the Employer made the decision to dismiss the Claimant on the grounds that her contract was the first to expire which meant the pool for redundancy selection was reduced to one.

The Claimant was a nurse employed through a series of fixed term contracts. This was alongside another nurse who had a similar role also employed under a series of fixed term contracts. The Employer was facing financial difficulties and following a meeting with the Claimant, it was decided she would be dismissed by reason of redundancy due to her contract expiring first.

Following this a period of consultation began which involved the possibility of alternative employment but this was unsuccessful and the Claimant was dismissed.

The Claimant submitted a claim for unfair dismissal which was unsuccessful at the Employment Tribunal. The Claimant appealed this decision.

The EAT decided the dismissal was unfair. The main reason being consultation is a fundamental part of a fair redundancy process. It needs to be genuine and meaningful where the employee can have a genuine influence on the process. As the dismissal had already been decided prior to consultation taking place, it was not possible to discuss the selection criteria with the Claimant. Where the choice of selection criteria has the practical result that the selection for redundancy is made by that decision itself, consultation should take place before that decision is made. A failure to do so is not within the band of reasonable responses for the purposes of section 98(4) of the Employment Rights Act 1996. The implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one can be fair in appropriate circumstances, it should not be considered where there is more than one employee without prior consultation.

Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022] EAT 139

James Williams – Solicitor

James Williams

I am a qualified Employment Law and HR Solicitor. I specialise in acting for schools and advise on all aspects of employment law and HR including attending employee meetings, advising senior leaders, conducting redundancy consultations, drafting contracts of employment, advising on policies and procedures and negotiating settlement agreements.