390: Tread carefully when using redundancy pools of one

In Mogane v Bradford Teaching Hospitals NHS Foundation Trust, the Employment Appeal Tribunal (EAT) has ruled that where the choice of selection criteria had the practical effect of identifying one employee for redundancy, the Claimant’s dismissal was unfair because subsequent consultation could not be considered genuine or meaningful. This judgment offers a useful reminder that consultation must be fair, genuine, and meaningful in individual as well as collective redundancies. To be fair, consultation must take place at a stage when an employee’s input has the potential to affect the outcome.

Ms Mogane and a colleague were employed as Band 6 nurses by the Bradford Teaching Hospitals NHS Foundation Trust (Trust) on fixed-term contracts. Ms Mogane had been employed on a series of one year contracts, the most recent of which was due to expire before the end of her colleague’s two-year fixed term. In March 2019, she was informed that the Trust was experiencing financial difficulties. Shortly afterwards, it was decided that Ms Mogane would be made redundant using the sole criterion that her fixed-term contract came up for renewal first. Subsequent attempts to find her alternative employment failed and she was dismissed on 31 December 2019. Amongst other claims, Ms Mogane brought unfair dismissal proceedings in the Employment Tribunal.

The Tribunal dismissed Ms Mogane’s claim, ruling that where all relevant employees are on short-term contracts, it is reasonable for an employer to select for redundancy on the basis of which contract is up for renewal first.

The EAT disagreed with the Tribunal’s reasoning and substituted a finding that Ms Mogane had been unfairly dismissed. The decision-maker had not considered whether the other Band 6 nurse, who was in a comparable role, should have been included in the redundancy pool. Once the decision had been taken to select for redundancy on the arbitrary basis of whose contract was up for renewal first, Ms Mogane was immediately identified as the person who would be dismissed. This meant that subsequent consultation was meaningless, since Ms Mogane was not in a position to influence the outcome, and the dismissal was procedurally unfair. Her case was sent back to the Employment Tribunal to decide on compensation.

The EAT also noted that an employer’s implied duty of trust and confidence includes an obligation not to act arbitrarily towards employees in the methods of selection for redundancy. The selection pool must be rational and reasonable in all the circumstances. A pool of one may sometimes be fair but should not be considered without prior consultation if, as here, there are other relevant employees. It should be noted that although the employee in this case was consulted about alternative employment, this was not sufficient to avoid a finding of unfair dismissal.

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