A pool of one: ensuring proper consultation for redundancy

Effective and proper consultation is a fundamental component of a fair redundancy process.  In this article we comment on the importance of proper consultation and the need for it to cover all aspects of the redundancy decision and the process that is to follow. This is off the back of the recent Employment Appeal Tribunal (EAT) decision in Valimulla v Al-Khair Foundation.

Valimulla v Al-Khair Foundation

The claimant worked for a faith-based charity as a Liaison Officer and his role was based in the Bolton office and covered North-West England. The claimant worked with four other employees who performed the same role but in different locations in the UK.

During Covid-19 the workload for Liaison Officers decreased. The claimant was informed he would be made redundant and placed into a consultation pool of one. The other four employees were not placed at risk of redundancy. The claimant made a claim for unfair dismissal because he had not been properly consulted about the decision to put him into a selection pool of one.

The Employment Tribunal (ET) considered that the claimant’s dismissal was a genuine redundancy situation and that the claimant was in a self-selecting pool of one, rendering the redundancy fair because his job was ‘unique’ compared to the other four employees who worked at different branches. The ET also noted that the redundancy was within the range of reasonable responses his employer could have taken during the pandemic because the business needs changed overnight.

On appeal to the EAT, the claimant argued that the ET had failed to consider whether his employer had acted reasonably by not consulting with him about the decision to put him in a pool of one, rather than pool him with the other four employees. Although the Claimant had three separate consultation meetings with his employer, the EAT noted that for consultation to have been meaningful, he needed to be specifically consulted about why he was placed in a pool of one when the other employees were not.

The claimant’s appeal was successful. The EAT held that the ET failed to consider the reasonableness of the employer’s approach to placing the claimant in a pool of one.

This decision makes clear to employers that effective consultation is an essential component of a fair redundancy process. If employers get the consultation process wrong – it can be costly when faced with a claim for unfair dismissal in the ET, especially if a compensatory award is ordered.

Key takeaway for employers

Employers must properly consult with employees before making a redundancy decision and note:

• Although redundancy is a potentially fair reason for redundancy – time should be taken to properly consult with employees by identifying the reason for the redundancy and selection, ensuring the process is fair and any selection criteria is objective
• For consultation to be meaningful, employees should be given the opportunity to make representations and give feedback. Employers should be ready to provide rationale for the provisional pooling decision and be open to feedback before making a final decision on pooling.

For further information about the importance of consultation during redundancy, and the need for it to take place at a formative stage, please read our previous article on the importance of redundancy pools here.

If you have any questions or would like to discuss anything in this article, please speak to a member of our Employment team.