The importance of redundancy pools and the consequences of deciding on a pool of one employee without prior consultation

The case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust demonstrates the importance of redundancy consultation taking place at a stage when the employee can still potentially influence the outcome.

Facts of Mogane v Bradford Teaching Hospitals NHS Foundation Trust

The claimant worked as a nurse for the NHS and was on a series of one-year fixed term contracts since 2016. A redundancy situation occurred due to the financial circumstances of the research unit, and it was concluded that the situation required a reduction in staff. The other nurse working in the unit had recently started a two-year contract after a successful probation period and therefore, the claimant’s contract was due to expire prior to the expiration of the second nurse’s fixed term.

The respondent had stated that the sole reason for deciding upon the claimant for redundancy was because her contract was coming up for renewal. The tribunal stated that ‘where all relevant employees are on short-term contracts it is within the band of reasonable responses to take a decision based upon which of those is due for renewal at the particular point where there are perceived to be economical difficulties and where there is a diminution in the requirement for employees at that Band 6 level.’

The claimant was told about the possible redundancy situation on 21 March 2019 and shortly after, the decision-maker concluded it would be the claimant who would be made redundant. It is not until after this decision when the consultation process began. However, despite this the ET dismissed the claimant’s unfair dismissal claim. As a result, the claimant decided to appeal to the Employment Appeal Tribunal (EAT).

The decision

The EAT overturned the decision of the ET, highlighting the point that employers must carry out consultation with employees at a point where it can be considered meaningful. However, in this case consultation was made after the decision had already been made.

The EAT concluded that the ET made a clear departure from established principles when considering if a fair consultation was carried out:
•    Consultation must take place when the proposals are still at a formative stage;
•    The employee must be given adequate information on which to respond;
•    There must be adequate time in which to respond; and
•    The employer should give due consideration to the employee’s responses during the consultation process.

If time left on the contract was the sole criteria, then the claimant was doomed to be the one dismissed once that criteria had been determined.   The subsequent consultation with the claimant was at a time where the decision could not be impacted.  Therefore, this dismissal was deemed to be unfair.  The employer in this case did not help itself by using this sole criteria and failing to explain why it was the most appropriate way to select which nurse best met the future needs of the organisation.

Key points for employers

Employers must ensure that they follow the correct procedures when making employees redundant.  Remember the key points for a fair redundancy dismissal:
•    Warn and consult employees about the proposed redundancy.
•    Adopt a fair basis on which to select for redundancy.
•    Identify an appropriate pool from which to select potentially redundant employees
•    Use a selection criteria to decide who from the pool is to be redundant.  The criteria should be as objective as possible.
•    Consider suitable alternative employment within the organisation.