Failure to Consult on Selection Criteria Leads to Unfair Dismissal
The Employment Appeal Tribunal (EAT) has found an employer acted unfairly when it did not consult on redundancy selection criteria, where the sole selection criteria inevitably led to a redundancy pool of one.
Fair Redundancy Procedures
It is well established that genuine and meaningful consultation is a fundamental aspect of a fair redundancy procedure. This applies equally to individual and collective redundancy procedures, although the method of consultation may vary.
Mogane v Bradford Teaching Hospitals NHS Foundation Trust
Ms Mogane and another nurse carried out similar roles and were both employed on a series of fixed-term contracts. The Trust was facing financial difficulties and decided that it would make Ms Mogane redundant based on the sole criteria that her fixed term contract was due to expire first.
The Trust informed Ms Mogane that she was at risk of redundancy and commenced a period of consultation which included a search for alternative employment. Unfortunately, no alternative employment was found and Ms Mogane's redundancy was confirmed and she was dismissed.
Ms Mogane brought an unfair dismissal claim which was dismissed by the Employment Tribunal. She appealed to the EAT.
EAT Finds That Ms Mogane Was Unfairly Dismissed
The EAT allowed the appeal on the grounds that there had not been proper consultation and substituted a finding that Ms Mogane was unfairly dismissed.
For redundancy consultation to be genuine and meaningful it must take place at a stage when an employee can still, potentially, influence the outcome. In this case, where the choice of criteria adopted to select for redundancy had the practical result of determining who would be made redundant, consultation should have taken place prior to adopting the selection criteria.
In the EAT's words "It is not within the band of reasonable responses, in the absence of consultation, to adopt one criterion which simultaneously decides the pool of employees and which employee is to be dismissed."
The EAT remitted the case to a newly constituted Employment Tribunal to determine remedy.
Staff Should Be Consulted on the Redundancy Selection Criteria
This decision provides useful guidance on the application of redundancy selection criteria and the extent to which it might be necessary to consult staff on those criteria before they are confirmed.
Employers will sometimes want to carry out selection before communicating with affected employees in order to minimise disruption and maintain stability in the workforce at a difficult time. This can be a fair way to proceed but this case shows that each situation will need to be assessed on its own particular facts. If there is a risk that the selection criteria adopted will inevitably result in a selection pool of one, the question of when consultation starts will be critical.
