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Redundancy selection: pools of one and meaningful consultation

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Gilbert Musanhu

Associate

London

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28 October 2022

Useful reminder from the Employment Appeal Tribunal that meaningful consultation should occur at the formative stage of a redundancy process which is when the employee can still potentially influence the redundancy outcome.

In the current economic climate, redundancies are sadly inevitable, which is why it is important to get the process right. The recent case of Mogane v Bradford Teaching Hospitals is a timely reminder of two important points:

  1. Whether a redundancy selection “pool of one” can be used; and
  2. At what point consultation should commence.

After highlighting the inherent risks associated with a redundancy pool of one, the EAT acknowledged that it can be fair to use one in appropriate circumstances, but it would be unfair if it was applied without prior consultation with the affected employee, where there is more than one employee. This was particularly important where the single factor selection criterion chosen inevitably led to a pool of one. Regardless of whether the consultation is collective or individual, it should take place at a time when the affected employee or employee representatives can still potentially  influence the redundancy outcome. 

Take-away

In most cases, a pool of one will never land well with the single recipient of that message. Instinctively, it sounds arbitrary, and this is why, without a cogent explanation from the employer, it may appear unfair. It is important to ask, what is unique about the role that prevents it from being put into a selection pool with other roles, and it is always preferable to have more than one objective factor making up the redundancy selection criteria.

The consultation process is not only the employer’s opportunity to meaningfully explain why such a narrow pool has been selected, but it is also the employee or employee representatives’ chance to challenge or question it (thereby, potentially influencing the redundancy outcome). A transparent dialogue helps to demonstrate that the consultation is meaningful and timely.  As explained further in our detailed case summary, it does not mean that the employer cannot use a pool of one if, after consulting, it remains appropriate.