Yes, according to the case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022 EAT 139.
The Claimant was one of several nurses employed on a succession of fixed-term contracts. The employer selected her post as ‘at risk’ for redundancy on the basis that her funding was coming to an end. When the case was first heard, the tribunal held that the dismissal was fair.
On appeal, the EAT overturned the decision, holding that the dismissal was unfair. It was found that when the employee could still, potentially, have influenced the outcome. consultation is still required prior to the decision on a ‘pool of one’ being made. Furthermore, the implied term of trust and confidence requires that employers will not act arbitrarily towards employees in the methods of selection for redundancy.
Whilst a pool of one can be fair in appropriate circumstances, it should not be considered without prior consultation, where there is more than one employee.
In Conclusion
This judgment is controversial. It is hard to reconcile this judgment with previous Court of Appeal’s decisions such as British Aerospace v Green. However, employers should remember that “the concept of fairness, when applied to the selection process for redundancy, is incapable of being expressed in absolute terms. There are no cut and dried formulae and no short cuts.“
Whilst this case shouldn’t be used to artificially widening pools to cover staff not genuinely at risk, (e.g. a hotel considering making its in-house pianist redundant would on the face of this judgment be acting unfairly unless it widened the initial pool to non-pianist staff). The case can be seen as an example of consultation being used to check that it is in fact pool of one in the first place. We will have to see how this case develops
Please note that this advice is general in nature. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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