28 October 2022: When selecting staff for potential redundancy, the employer will normally start by defining the pool from which redundancies will be selected.
For example, if you have five Widget Testers, but want to reduce the number from six down to three, you would put all six at risk of redundancy.
Can it be fair to decide on a pool of one employee without prior consultation?
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust, the Employment Appeals Tribunal (EAT), Ms Mogane was one of seveeral nurses on fixed term contracts, but she was the only person put at risk because funding for her role was coming to an end.
The EAT held that while a pool of one can be fair in appropriate circumstances, it should not be considered without prior consultation if there is more than one employee, as in this case. The dismissal was unfair.
In the Mogane claim, there were several nurses who could have been consulted, and so someone else could have ended up being selected for redundancy instead of her, even if funding for only her role was ending.
However what happens if there is only one person performing a certain role, and that role is to be removed, for example one accountant? Should other unrelated staff also be put at risk? The decision seems to suggest that they should.
If there appears to be a redundancy pool of one, it would appear to be sensible to put that one person at risk, but then in the first consultation meeting to explain to them why a pool of one has been identified, and ask if they have any comments on that. The employee might have no challenges to the pool of one. On the other hand, if the employee thinks that more than one person should be put at risk, the employer can then consider the point further.
See are page on when redundancy goes wrong.