Redundancy pools of one
The Employment Appeal Tribunal (EAT) has held that a tribunal erred in finding that a dismissal was fair in the absence of consultation over a redundancy pool of one.
What were the facts of the case?
In the case of Valimulla v Al-Khair Foundation, the claimant was employed as a Masjid Liaison Officer (MLO) at Al-Khair Foundation, a faith based charity. The claimant's role involved fundraising in the community. The claimant was based in the North-West of England and there were three other employees carrying out a similar role nationally.
In 2020, the Foundation noticed a general downturn in contributions whilst places of worship were closed due to the pandemic. The claimant was placed on furlough, along with other staff whose duties involved collecting contributions from places of worship. The claimant was subsequently identified as being at risk of redundancy and was placed into a consultation pool of one.
Three consultation meetings took place. At the first, the claimant was told his role was at risk and that, in order to respond to the financial difficulties the charity was facing, it was proposed that some branches would close whilst others would remain open. At the second meeting, the claimant put forward a business case to 'defend' his role. There was no consultation regarding the appropriateness of the redundancy pool. One further meeting took place and then the claimant was dismissed.
The claimant brought a claim for unfair dismissal at the Employment Tribunal. The Tribunal found that the dismissal had been fair as the claimant was in a unique role and there was a self-selecting pool of one. The Claimant appealed to the EAT, arguing that the Employment Tribunal had made insufficient findings of fact relating to the fairness of that approach.
EAT decision
The EAT allowed the appeal in respect of procedural unfairness, finding that the Employment Tribunal had adopted the incorrect approach in considering the redundancy pool of one.
For consultation to be meaningful, it must take place at a time when it can potentially make a difference to the outcome. In other words, consultation should take place in a way that allows responses to a proposal to be considered and reflected upon before an ultimate decision is made.
In this case the difficulty was that the respondent had said the claimant was in a unique role justifying the pool of one. In fact, there were three other employees doing the same or similar jobs as the claimant, albeit in different geographical locations. The redundancy programme was part of a nationwide redundancy process. It was not clear whether in the claimant's specific position, there was a reduced requirement for work of a particular kind, or whether there was a reduced requirement for work of a particular kind at the location where the claimant worked.
The Tribunal is required to consider whether the employer has genuinely applied its mind to the question of redundancy pooling. It must determine whether it was reasonable for the pool to be constructed in the way it was. In this case, the Tribunal found there was a general reduced requirement for work of the particular kind the claimant was carrying out. There were no findings about a reduced requirement for work in a particular location, which might have justified the narrow redundancy pool.
Learning points for employers
This EAT decision serves as an interesting reminder of the importance of anticipating criticism and questions about narrow redundancy pools. From the employer's perspective, it is important to be able to justify a narrow pool. In this case, had there been a particular downturn in one geographical location, or had the claimant's role been substantively different to all of his colleagues, it might have been possible to justify the narrow selection pool.