A recent case heard by the Employment Tribunal highlights the importance of following a fair consultation process when looking at redundancies, regardless of the pool.
In the case of Valimulla v Al-Khair Foundation, the Claimant worked as a liaison officer covering the North-West of England. There were other employees who carried out a similar role in other geographic locations. Work for liaison officers decreased across the country during the Covid pandemic. The Respondent placed the Claimant at risk of redundancy in a pool of one, with the other liaison officers not placed at risk. Whilst three consultation meetings were held, there was no consultation about the appropriateness of the selection pool. The Claimant was dismissed and claimed unfair dismissal.
In the first instance, the Employment Tribunal accepted Al-Khair Foundation’s defence that Mr Valimulla was in a self-selecting pool of one and found that the selection process had not been flawed. The Claimant appealed.
The Employment Appeal Tribunal, allowing the appeal, held that consultation on redundancy had to take place at a time when it could make a difference. The Respondent had not consulted with the Claimant about the pool for selection. The tribunal had also failed to consider whether choosing a pool of one was a reasonable approach in this particular case.
The EAT substituted a finding of unfair dismissal (on procedural grounds) because of the failure to consult about pooling.
This case demonstrates the importance of employers genuinely applying their mind to the question of pooling and evidencing reasonableness in their approach. It also reiterates the need to consult with staff on a proposed redundancy pool and carefully consider the choice of pool, which includes looking at employees at different locations.
Relevant factors which may be considered when determining the pool of candidates for redundancy include the following:
- The extent to which employees are doing similar work (possibly even if they are performed at different locations). The employer should look at the reality of the situation as opposed to what the contract says in theory regarding the employees working role.
- The extent to which any employee roles are interchangeable.
- Whether the employer “genuinely applied” its mind to the composition of the pool.
- Whether the selection pool was agreed with the union or employee representatives, if appropriate.
Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited