The Employment Appeal Tribunal (Mr. Valimulla v Al-Khair Foundation (June 2024)) has given HR managers and employment lawyers a further reminder that employers should, or at least depending on the facts may have to, consult on the proposed pool for redundancy, even where the employer chooses a pool of one. In 2022 we reported a different EAT case (Mogane v Bradford Teaching Hospitals NHS Foundation Trust) which, somewhat controversially at the time, seemed to establish a hard and fast rule to that effect.
In Mr. Valimulla v Al-Khair Foundation the Claimant worked as a liaison officer covering the North-West of England. More liaison officers carrying out similar roles were employed in other regions. The amount of work decreased nationally and therefore the employer had a diminution in requirements for such liaison officers across the country. The employer placed the claimant in a pool of one, proceeded over the course of 3 meetings to consult with [him/her] but did not place any other regional liaison officers at risk. Nor did the employer consult with the claimant about the appropriateness of the pool of one it had chosen. [Mr/Ms/Mrs] was dismissed and claimed unfair dismissal. The tribunal at first instance found that the dismissal was fair.
On appeal the EAT ruled that the dismissal was unfair as there had been no consultation about the pool for selection from the beginning of the process at a time when it could have made a difference. Furthermore, the tribunal at first instance had not considered whether the pool of one approach was reasonable i.e. rational.
Practical tip
Redundancies based on pools of one can be fair but the employer must be seen to consult with the target employee about the rationale behind any such proposal. The employer need not artificially widen the pool to cover staff not genuinely at risk, particularly where the function is organised regionally. The way to avoid unfair dismissal is for the employer to be seen on the face of the documents to have consulted with the prospectively redundant employee about its proposed pool (of one) and explain the rationale behind the decision, if it decides not to expand the pool or indeed to explain the reason to others placed at risk.
