Can a lack of consultation regarding the pool for selection in a redundancy situation result in the dismissal being unfair?
Yes, said the Employment Appeal Tribunal (EAT) in the case of Valimulla v Al-Khair Foundation.
Background
Mr Valimulla worked for the Al-Khair Foundation (the Foundation) as a liaison officer covering the North-West of England involved in raising funds for the charitable Foundation. Three other employees carried out similar roles in different geographical areas.
He was placed in a pool of one by the Foundation and dismissed as redundant. At the tribunal, an employment judge found his dismissal to be fair and accepted the Foundation’s contention that the claimant was in a unique enough role to be placed in a pool by himself.
Mr Valimulla appealed against the decision arguing, among other points, that he had not been consulted with regarding the Foundation’s decision to place him in a pool of one.
Law
The law on appropriate pools for selection is largely derived from the case law in this area.
The case of Polkey v AE Dayton Services Ltd, provides that adopting a fair basis on which to select for redundancy is a crucial component of a fair redundancy dismissal.
Other cases such as Taymech Ltd v Ryan have established that how a pool should be defined is primarily a matter for the employer providing it genuinely applies its mind to a reasonable choice of pool.
There have also been cases where it has been found to be reasonable to place employees in a pool of one.
Decision
The EAT agreed with Mr Valimulla in this case and allowed the appeal.
The EAT held that the tribunal hadn’t properly considered whether the Foundation had applied its mind to the question of pooling and whether it was reasonable to consider Mr Valimulla’s role as being unique when there were others performing similar roles in different geographical locations.
It was emphasised that consultation is a crucial aspect of a fair redundancy process and must take place at a stage of the process where it can make a difference to the outcome.
The lack of meaningful consultation in this case regarding Mr Valimulla being in a pool of one led to the EAT substituting its own finding that the dismissal was procedurally unfair.
Comment
Daniel Gorry, Partner in our Employment team comments:
“This case highlights the importance of employers carefully applying their mind to what an appropriate pool for selection looks like in a redundancy situation.
“While there are situations where a pool of one is a reasonable choice of pool, the employer will need to be able to evidence to a tribunal that it had carefully thought through the choice of pool and consulted with the affected employee about it at an early stage.
“Employers should be mindful of the fact that choosing to narrow a pool where there are other employees carrying out comparable roles could lead to the choice of pool being found to be unreasonable and any resulting dismissal unfair.”
