Redundancy Selection Pools Revisited16.10.2012
In July’s Brief we reported on redundancy selection and two cases which looked at whether employers are able to run a redundancy procedure with only one employee in the redundancy selection pool.
In that article we pointed out that employers should proceed with care when singling out just one employee, and suggested that employers should be able demonstrate that they gave due consideration as to which employees are selected for the redundancy pool.
Since reporting on those cases, the Employment Appeal Tribunal (EAT) has looked at the issue again in Wrexham Golf Club Co v Ingham. In this case, the EAT reversed an Employment Tribunal’s (ET) decision which found that an employee had been unfairly dismissed because the employer had not considered the possibility of establishing a wider redundancy selection pool when planning the redundancy.
There are no fixed rules about who should be included in a selection pool, but when looking at the pool, the ET will look at whether it was within the range of reasonable responses that the employer could have taken. Provided the employer has genuinely applied its mind to the decision, it will be difficult for an employee to challenge the choice of pool.
In the Wrexham case, the employee in question was a steward, and one of 11 employees. His main role was managing the bar, but he also looked after the clubhouse at weekends. Mr Ingham was the only steward and to cut costs the employer intended to cut his role and have his duties carried out by others. Mr Ingham was duly put at risk of redundancy and after a consultation and appeal was made redundant.
The ET found that he had been unfairly dismissed because the club had not considered the possibility of establishing a selection pool and had not allowed for the fact that there was overlap between Mr Ingham’s duties and those of other bar staff. However, this was reversed by the EAT, applying the principles set out in Capita Hartshead v Byard (one of the cases we reported on in July).
The EAT found that the ET should have considered whether the decision to place Mr Ingham in a selection pool of one was within the range of responses. The ET should have looked at whether given the nature of Mr Ingham’s work, it was reasonable for the club not to have considered developing a wider pool. The EAT’s view was that there will be cases where it is reasonable to focus on a single employee without establishing a pool or even considering whether one should be established. The case has been referred back to the ET for a fresh hearing.
Employers are likely to be relieved with the finding that in some straightforward redundancy situations where just one role is being cut, a dismissal may be fair even if it does not apply its mind to the question of the selection pool. However, our advice would still be that other than in exceptional cases, it is preferable to give consideration as to whether a wider selection pool is appropriate and to be able to show that this was considered in the event that evidence to this effect is ever required before a Tribunal