Regardless of how many redundancies are being made, employers must follow a fair consultation process as a consultation is fundamental to the fairness of any dismissal for redundancy.
This is still the case even when the pool of potential candidates for redundancy is only a pool of one.
The recent case of Valimulla -v- Al-Khair Foundation [2023] demonstrates that it is important that employers genuinely apply their mind to the question of pooling and show reasonableness in their approach.
The facts of the case
Mr Valimulla worked as a liaison officer for Al-Khair Foundation covering the North-West of England, there were other employees that performed a similar role but in other geographical locations in the UK.
Unfortunately, during the Covid pandemic, the need for liaison officers decreased and as a result Mr Valimulla was placed in a pool of one at risk of redundancy. This was despite the fact others performed the same role as Mr Valimulla, albeit in different locations.
In the first instance the Employment Tribunal (ET) accepted Al-Khair Foundation’s defence that Mr Valimulla was in a self-selecting pool of one and found that the selection process had not been flawed.
Mr Valimulla appealed the decision and the EAT found that Al-Khair Foundation had not consulted with the Claimant about the selection pool and that the ET had failed to consider whether a pool of one was appropriate.
Consequently, the EAT found that Mr Valimulla had been unfairly dismissed on procedural grounds because of a failure to adequately consult about pooling.
What can be learned from the case?
This case reiterates the importance of consulting with staff on a proposed redundancy pool and to carefully consider the choice of pool, including employees at different locations.
The starting point for employers should be to consider which kind of work is ceasing/diminishing and which employees perform that kind of work.
Relevant factors to consider when determining the pool of candidates for redundancy include:
- The extent to which employees are doing similar work (possibly even if they are performed at different locations). The employer should look at the reality of the situation as opposed to what the contract says in theory regarding the employees working role.
- The extent to which any employee roles are interchangeable.
- Whether the employer “genuinely applied” its mind to the composition of the pool.
- Whether the section pool was agreed with the union or employee representatives, if appropriate.
It is important that employers must be able to demonstrate that they have genuinely applied their mind to the question of pooling, otherwise the decision not to pool an employee with colleagues can be seen as a pre-determined decision as to who should be made redundant and an unfair process.
If you require any advice in relation to redundancy, please contact our team today.
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