Dismissal declared unfair where employee was unable to influence consultation process due to pre-agreed selection criterion leading to a pool of one

Posted: 24/10/2022

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In the recent case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust and anor, the Employment Appeal Tribunal (EAT) found that a redundancy consultation is not meaningful if it takes place only after the decision has been made to apply a single selection criterion that inevitably leads to a pool of one, and therefore identifies the employee to be made redundant. Consultation only began once it was no longer possible for the employee to influence the outcome of the process, and therefore her dismissal was unfair.

Background facts

The claimant was one of two band six level nurses employed by the trust. Both nurses were employed on fixed term contracts. The trust was in financial difficulty and a reduction in staff was required to reduce costs. As such, a potential redundancy situation arose.

The second nurse had been appointed on a two-year contract which, shortly before the commencement of the redundancy process, had been confirmed following the successful completion of a probationary period. The claimant had been employed since 2016 on a series of one-year contracts. The most recent of these contracts was due to expire prior to the expiry of the second nurse’s fixed term.

In March 2019, the claimant was invited to a meeting and informed about the financial difficulties of the trust. Soon afterwards, the trust decided that the sole criterion for selecting who would be made redundant was the length of time which was left on each of the nurse’s fixed-term contracts. This meant the claimant was selected as the one to be made redundant.

Importantly, the claimant was not consulted regarding the decision to use this criterion, which essentially meant that she would inevitably be selected for redundancy. Alternative roles were considered, but none were suitable, and so the claimant was made redundant.

Tribunal claim

The claimant brought a claim for unfair dismissal, which was dismissed by the Employment Tribunal. The claimant appealed to the EAT.

The EAT noted that it is well established that consultation is a fundamental aspect of a fair redundancy procedure. This principle applies to individual redundancies as well as collective redundancy situations. Furthermore, in order for consultation to be genuine and meaningful, it must take place at a formative stage when an employee can still potentially influence the outcome.

In the claimant’s case, this did not happen as the decision to apply the sole criterion of the length of time left on a fixed term contract was taken before her consultation meeting. This meant that she could not realistically affect the outcome of the process. This failure meant that the trust’s decision to dismiss her was not within the band of reasonable responses and was therefore unfair.

The EAT also held that the implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy.

The EAT therefore upheld the claimant’s appeal.

Considerations for employers

This case demonstrates the dangers of selecting one single criterion in redundancy situations, and of not carrying out a reasonable consultation process. Ideally, employers should try and use a number of different objective selection criteria when considering redundancy. This helps to demonstrate that a fair process has been followed and may avoid criticism by a tribunal further down the line if litigation occurs.

The decision does not mean that a single criterion cannot ever be used. However, where one criterion is used and this leads to a selection pool of one, thereby effectively identifying the employee to be dismissed, the affected individual must be consulted with before the decision is taken to use the criterion. Failure to do so will mean that any consultation is not meaningful and will expose the employer to the risk of an unfair dismissal claim.

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