Redundancy pools of one – proceed with caution

What significance does the recent case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust have on fair redundancy procedures?

The facts of the case

The claimant in this case was a nurse who had been employed on a succession of one year fixed-term contracts between 2016 and 2019. There was one other nurse working at the Trust, on the same banding as the claimant, but she was employed on a two-year fixed-term contract.

The claimant argued that she had been unfairly dismissed by the Trust by reason of redundancy. She argued that the redundancy procedure the Trust used had been unfair because it chose her for redundancy in a pool of one because her fixed-term contract was to be renewed first. It had not appeared to consider any alternatives through a proper consultation process and meant her redundancy selection in her pool of one was unavoidable.

The Employment Appeal Tribunal (EAT) found in her favour. It decided that the Trust’s redundancy selection which included the claimant in a pool of one was determined before the consultation process had begun.

During the consultation, the Trust had also failed to follow a proper process as it did not consider any alternatives to avoid redundancy. The EAT emphasised that a proper consultation process is a vital part of a fair redundancy procedure.

The Trust had chosen between the claimant and her colleague arbitrarily and on the basis that her fixed-term contract would expire first. The EAT commented that by choosing between employees arbitrarily in this way, it was not within the Trust’s reasonable band of responses, and could breach the implied term of mutual trust and confidence.

Key findings

This case highlights the importance of carrying out a fair and proper consultation procedure. Consultation must be genuine and meaningful. This means giving employees the opportunity to make suggestions which can still potentially influence the outcome.

The EAT explained that whilst a redundancy pool of one can be fair in certain circumstances, it should not be used where there is more than one employee without prior consultation. It is also imperative to ensure the selection criteria are not discriminatory and no decision is pre-determined. Employers should use fair selection criteria for pooling and use objective evidence where possible to support their decisions.

The judgement is however considered controversial as the decision means that employers could artificially widen pools of employees for potential redundancy even though they are not genuinely at risk. The judgement also suggests that claims of constructive dismissal could be brought by employees who feel they have been wrongly pooled by virtue of breaching the implied term of mutual trust and confidence.

Whilst there is suggestion that the decision may be wrongly decided, it is important to consider this case and the importance of a fair selection process if your school is considering the possibility of redundancies.

How Moore Barlow can help

If you require guidance and support on redundancy procedures, please contact our employment team today.