It is established law that when deciding on a proposed pool for selection in redundancy, employers have a reasonable degree of latitude. Case law generally supports the fact that provided the employer has applied its mind to the selection pool, and the proposed pool is reasonable, then Tribunals should not really be disturbing that reasonable view of the employer. As ever however, such principles have their limits and in this case the Employment Appeal Tribunal found those limits had been stretched.
Valimulla v Al-Khair Foundation
The Claimant worked in a particular position in the Northwest of England covering that geographical area. Other employees carried out similar roles in other locations across the country. The employer decided that the Claimant’s position in the Northwest should proceed on the basis of a redundancy pool of one and the other employees in the same roles across other areas were not placed at risk. There was consultation but the employer had already decided about the appropriateness of the pool and did not consult on that issue.
The Claimant subsequently brought Tribunal claims for unfair dismissal and in the first instance the Tribunal agreed with the Respondent. Although there were some criticisms of the procedure followed, the process could not be deemed to be unfair, however the Claimant then appealed to the Employment Appeal Tribunal.
The Claimant succeeded on appeal. The Employment Appeal Tribunal emphasised the importance of consultation at the time when it can make a difference. The Employment Appeal Tribunal effectively identified two main areas in the Tribunal’s reasoning: –
- Firstly, the Tribunal had failed to assess whether the Respondent’s selection of a pool of one was a reasonable decision on the facts of the case;
- Secondly, it found that the Respondent had not consulted with the Claimant about the pool of full selection.
In Conclusion
The decision of the Employment Appeal Tribunal emphasises the importance for a Respondent to consult early and on all matters in relation to redundancy. A Tribunal will generally still find it hard to overturn the Respondent’s decision on the pool for selection provided the employer has applied its mind to it and it is broadly reasonable.
In this case the Employment Appeal Tribunal was critical because the Tribunal had simply not assessed whether the employer’s choice of pool was a reasonable approach and had not discussed the pool with the employee. It is a reminder that once the employer has decided on a proposed pool of selection it should explain that to the employees at risk of redundancy early on in the process and then at least listen to any counter arguments before deciding whether or not to proceed with that pool.
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. 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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