In Mogane v Bradford Teaching Hospitals NHS Foundation Trust, the Employment Appeal Tribunal (EAT) considered whether a redundancy process was fair where the criteria for selection resulted in a selection pool of one.
The Facts
Ms Mogane was employed as a Band 6 nurse by the Trust on a series of one-year fixed-term contracts. Another Band 6 nurse carrying out similar duties was also employed on a fixed-term contract of two years. Owing to financial difficulties, the Trust decided to reduce the number of Band 6 roles and made Ms Mogane redundant. She was selected for redundancy over the other Band 6 nurse because her most recent fixed-term contract was due to expire first. The expiry date of the fixed-term contracts was the only selection criteria applied by the employer, effectively putting Ms Mogane in a selection pool of one.
After the decision was made to make Ms Mogane redundant, the Trust then went on to consult with her regarding possible alternative employment. However, no suitable alternative employment was found and she was dismissed as redundant. Ms Mogane brought a claim in the employment tribunal for unfair dismissal but the tribunal dismissed her claim, finding that it was ‘within the band of reasonable responses’ for the Trust to make a decision based on when the employment contracts were due for renewal.
The Decision
On appeal, the EAT focused on when consultation should occur during a redundancy process. A fundamental aspect of a fair redundancy process is genuine and meaningful consultation. The EAT concluded that for a consultation to be meaningful, it must occur early enough in the process that the employee has the opportunity to influence the outcome.
In the present case, that did not happen. By deciding to make redundant the employee whose contract was next up for renewal the Trust had identified a selection pool of one, making any further consultation about the dismissal futile. The Trust’s approach had effectively bypassed any proper consultation which would have allowed her to put forward her views and potentially affect the outcome of that decision. As a result, the EAT held that Ms Mogane was unfairly dismissed and the case was remitted to an employment tribunal to decide on the remedy.
What To Takeaway
The EAT did not suggest that relying on a single selection criterion or a pool of one employee will never be fair. However, a more cautious approach would be to adopt a range of objective selection criteria such as performance, disciplinary record and length of service, against which comparable employees are scored and provisionally selected for redundancy. For advice about conducting a redundancy process, please contact a member of our Employment team.
