Applying redundancy selection criteria before consultation was unfair


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The Employment Appeal Tribunal (EAT) has considered in Mogane v Bradford Teaching Hospitals NHS Foundation Trust whether an employer deciding to adopt a redundancy selection criteria that inevitably led to a pool of one employee was fair when no consultation had taken place prior to that decision.

Ms Mogane and another nurse in a similar role were employed on a series of fixed-term contracts. Ms Mogane was invited to a meeting at which she was told about the financial difficulties the Trust was facing. Soon after this the Trust decided that she should be dismissed for redundancy as her fixed-term contract expired first (effectively putting her in a pool of one). A redundancy consultation process began, which included consultation regarding the possibility of alternative employment, although this wasn't possible and she was dismissed.

The EAT held that consultation is a fundamental aspect of a fair redundancy procedure, and that this applies equally to individual as well as collective redundancy situations. In order for the consultation to be genuine and meaningful it has to take place at a formative stage when an employee can still potentially influence the outcome. While a pool of one can be fair in appropriate circumstances, it should not be considered where there is more than one employee without prior consultation. The selection of Ms Mogane was arbitrary, relating solely to the date on which her fixed-term contract ended, and as she was effectively chosen for dismissal before any consultation had taken place, the EAT found that she was unfairly dismissed.

Take note: Following the decision in Mogane it is clear that it will not be enough to decide to make someone redundant on the basis that their fixed-term contract is the first to expire, thereby automatically putting them into a pool of one. Prior consultation will have to take place at a formative stage before applying selection criteria in order for the process to be fair.

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