In any redundancy situation, the employer is going to have to decide what selection process they follow. One of the key questions in such a process is whether a group of employees need to be pooled for selection with some kind of assessment taking place as to who stays and who goes or whether the pool just involves one person, in which case if that post disappears, then the person in post at the time is the one who is selected for redundancy.

In a recent EAT decision, Valimulla v AL-KHAIR Foundation found that it was unfair dismissal not to have consulted about the appropriateness of the pool. The individual concerned worked as a Liaison Officer covering the North West of England and there were other employees who did the same thing albeit in other geographical areas. As a result of Covid, work for Liaison Officers decreased across the country and the employer decided to place the employee at risk of redundancy in a pool of one. The other Liaison Officers were not placed at risk. Three consultation meetings were held with the individual about the redundancy in general but they did not consult about the appropriateness of the pool.

When it reached the Employment Tribunal, the original Tribunal accepted that there was a pool of one. The employee appealed and the Employment Appeal Tribunal allowed that appeal, holding the consultation on redundancy needs to take place at a time when it could make a difference, which of course would be right at the beginning of the process.

Make sure that if you do have a reason to choose a pool of one, that you document what your reasons for doing that are. Include consultation with the individual affected about your thought process, ie. give the employee the opportunity to challenge your thinking and make alternative suggestions. You will then need to weigh what they have said against your own process and decide what methodology is most appropriate.

This the second recent decision going to the root of redundancies reminding us of the importance of process, that shouldn’t be skipped.

Refreshing Law
June 2024