Redundancy and Pools of Selection

Redundancy and Pools of Selection

REDUNDANCY CONSULTATION AND SELECTION POOLS

During any redundancy exercise, no matter how small, it is necessary to consult with affected staff with a view to reaching agreement.

It has long been accepted among the HR community that in a redundancy process, the decision as to the composition of the pools has been entirely at the discretion of the employer, to the extent that the employer did not need to consult staff on the size and composition of the pool.

This has been overturned, at least for now, by the Appeal Tribunal who have ruled that a dismissal for redundancy was unfair where the employer did not consult the member of staff on the pool.

In this case, it was a pool of 1, but that really doesn’t matter. It is a matter of overall fairness, and for the team at Sherbornes, it’s never really been clear why any employer would not seek to agree the pool of selection before applying it, even if they don’t strictly need to.   In broad terms, the employer must inform employees of the reason for redundancy and the method of calculating redundancy payment, as well as consulting on the following things:

• Possible alternatives to redundancy
• The number and type of employees affected
• The method selection
• Steps to mitigate the impact of the redundancy on the employee

The Appeal Tribunal have said that in the case of Mogane v Bradford Teaching Hospitals NHS Trust, that where the pool of selection was only one person, the employer should have consulted the employee on that pool before finalizing it.

For many, the pool of selection is how you group employees together before applying a selection for redundancy.  Where the pool only has one person, then selection matrices are usually not necessary. After all, it’s only one person in that pool. In this case, the court said there must be consultation before putting someone in such a pool.

The decision of the employer in this case is all the more mystifying because consultation does not mean the employer has to gain agreement. It is simply that the employer must listen to the views expressed.

The best advice then, is because the employer must consult on so much anyway when considering redundancy, it really doesn’t add a huge burden to consult on the pool as well. Then the risk of the subsequent redundancy being ruled unfair is eliminated. Who knows, the employer might actually learn something.

The case can be read in full HERE. Mogane v Bradford Teaching Hospitals NHS Foundation Trust (UNFAIR DISMISSAL AND REDUNDANCY) [2022] EAT 139 (10 June 2022) (bailii.org)