Employment Appeal Tribunal considers fairness of “pool of one” redundancies

The Employment Appeal Tribunal (“EAT”) has recently confirmed the extent to which an Employment Tribunal should analyse the decision of the employer to place an employee in a pool of one and the importance of an employee having an opportunity to be consulted with in respect of that pooling decision.

Facts

Mr Valimulla (“the Claimant”) worked for Al-Khair Foundation (“the Respondent”) as a Liaison Officer involved in raising funds for the Respondent. He worked in the North-West region but other employees performed similar functions in different locations in the UK.

The need for the role of Liaison Officers decreased during the COVID-19 pandemic and the Claimant was placed at risk of redundancy in a “pool of one” not alongside other employees who performed similar functions. It was the Respondent’s evidence that the Claimant’s role was unique. Three consultation meetings took place, and the Claimant was dismissed at the end of the third meeting. The Claimant criticised the redundancy process on the basis that any consultation was ineffective, that being told his role would be disappearing was a fait accompli. The Claimant took issue with the selection pool and the absence of selection criteria.

The Claimant brought a claim of unfair dismissal against his employer. The Employment Tribunal dismissed his claim and accepted the Respondent’s position that the role was unique. While the Employment Tribunal concluded that the process was not perfect, but that the decision was within the range of reasonable responses which the Respondent could have made, particularly during the pandemic.

The Claimant appealed to the EAT on the basis that the Employment Tribunal had failed to make sufficient findings on the fairness of the dismissal and had not addressed a material issue, that he had not been consulted with on the decision to pool him alone.

The law

In considering the fairness of a redundancy dismissal, an Employment Tribunal will consider the question of whether the employer “genuinely applied his mind to the problem of selecting the pool from which the person to be selected for redundancy” and has a duty to scrutinise the way in which the pool has been selected, including whether other employees performed similar jobs (Taymech v Ryan).

In Mogane v Bradford Teaching Hospitals NHS Foundation Trust, the EAT had held that it is important that consultation takes place at a formative stage of the redundancy process so that the employee has the opportunity to have a meaningful and genuine impact on the process. The decision confirmed that Tribunals should be reluctant to interfere with a pooling decision, but this is separate from the question of whether the pool chosen was “a pool that a reasonable employer could adopt in all the circumstances”.

Decision

The EAT reversed the Employment Tribunal’s decision. Other employees performed the same role at different locations. While the Tribunal had identified that a genuine redundancy situation existed, it did not answer the question as to whether the selection of the Claimant was fair. The Employment Tribunal had not considered the question of whether the particular selection process followed was fair and whether the Respondent had put their mind to the selection process and whether this approach came within the band of reasonable responses. This required an analysis of the role the Claimant performed and the similarities with other roles.

Additionally, in this case, consultation only took place once the pool had been decided by the Respondent. It was not clear from the evidence that consultation took place as to why he, alone, was in the pool and selected for redundancy compared to other employees at different locations. This had the impact that the Claimant not having an opportunity to be part of a meaningful consultation.

The Employment Appeal Tribunal substituted a finding of unfair dismissal.

Comment

This case is an important reminder to employers that in a redundancy situation those employees at risk need to have the opportunity to engage in meaningful consultation with their employer about the potential redundancy, including being able to discuss matters like selection criteria and pooling. While it has been established that pools of one can be fair where a role is genuinely unique, employers should consider at an early stage whether the employee in question has transferable skills which may mean that other employees should be included in the pool. Where a pool of one is used, it will be important that an employee is consulted with about this narrow pool at a stage when they can still potentially impact the outcome of the redundancy.

Case reference: Valimulla v Al-Khair Foundation [2023] EAT 131