Redundancy, consultation and a pool of one

Consulting with staff on redundancy pools is essential, especially where a pool of one is concerned.

Background

Mr Valimulla worked as a fundraiser based in the North-West for his charity employer. Three other employees performed the same or similar roles in different geographic locations. During the COVID pandemic Mr Valimulla was dismissed as redundant. For the purposes of redundancy selection, he was placed in a pool of one. A tribunal accepted the employer’s defence that Mr Valimulla was in a self-selecting pool of one, his role was unique and that the selection process had not been flawed. Mr Valimulla appealed, arguing that the tribunal had made insufficient findings of fact relevant to the fairness of his employer’s approach to pooling for the purposes of redundancy selection, and, because the tribunal failed to address a material issue, namely, his complaint that he was not consulted in relation to being placed in a pool on his own.

EAT decision

The appeal was allowed.

The tribunal appeared to have accepted, without more, the employer’s case that Mr Valimulla’s role was unique, notwithstanding the evidence that other employees performed the same role, albeit at other geographical location. It also did not appear to have considered whether the employer had genuinely applied its mind to the question of pooling, nor the reasonableness of the approach taken in this particular case to put Mr Valimulla in a pool of one.

On the question of consultation, the tribunal did not address this issue. Consultation is a key aspect of a fair redundancy process. To be meaningful it must take place at a time where it can potentially make a difference, and in such a way that responses to a proposal are considered and reflected upon, prior to a decision being made (see Mogane v Bradford Teaching Hospitals NHS Foundation Trust).

Comment

This case emphasises the need of the employer to consult with employees about every aspect of their proposed redundancy situation. If the employer here had applied its mind to the question of the pool and perhaps recorded its considerations in writing, had consulted with the employee initially about his view that he was in a pool of one and had listened to his representations on this before confirming the pools, then the only angle for the employee to bring a claim would have been on perversity, which is a high bar. Having done neither then the appeal was bound to succeed.