Pool of one
Labour & European Law Review Weekly Issue 268 10 May 2012
When making an employee redundant, employers have to decide who should be part of the pool for selection. In Halpin v Sandpiper Books Ltd, the Employment Appeal Tribunal (EAT) said that the pool can consist of one employee as selection is only relevant when there is a number of similarly qualified possible people who could be made redundant.
Mr Halpin was taken on by Sandpiper Books in 2007 as an administrator / analyst in London, where he worked mainly on analysing mail order sales.
In 2008, the company decided to expand into the Chinese market and, as Mr Halpin had spent a year in China teaching English as a foreign language, he was promoted to work in the firm’s China office, mainly doing sales work.
In August 2009, the company decided to close that office because it was not financially viable and decided to continue the work through a locally based agency rather than employed staff.
Mr Halpin was offered, but refused, part-time administrative work in the company’s Devon office and was then dismissed by reason of redundancy.
He brought a claim for unfair dismissal.
The Tribunal said that there was a genuine redundancy situation, as the company no longer had a requirement for work of the particular kind in the place where Mr Halpin was employed, namely to promote sales of books for Sandpiper in China.
It found that he had been fairly selected for redundancy "in so far as he was in a pool of one given his unique position dealing solely with sales and based in China".
As the company had consulted properly with him, taken reasonable steps to investigate the possibility of alternative employment, followed a fair procedure (including meetings and the right of appeal), the Tribunal concluded that the company had done “all that could be expected in the circumstances”.
Mr Halpin appealed, arguing that no reasonable employer would limit the pool to just the workers whose work had diminished and exclude those with interchangeable skills.
The EAT upheld the Tribunal decision.
It said that the company’s decision to limit the pool to one person was logical and not one that could be easily overturned. Mr Halpin was on his own out in China and the company had decided someone local should do his job. It confirmed that the decision about who should be in the pool was one for management.
“Selection only operates, when fairness is concerned, where there is a number of similarly qualified possible targets for redundancy. In this case there was only him”, said the EAT.
The decision by management to make that post redundant inevitably put him at risk. Once the Tribunal had decided that the company had followed the correct procedures, it would not have been right for it to interfere with the management decision to make Mr Halpin redundant
Finally, it said that the fact that he had initially carried out “administrative and analysis duties that were still mainly done by others did not mean that he was not at risk of redundancy”.
This case reinforces how difficult it is to challenge an employer’s decision about who to place in the pool for selection for redundancy. The EAT confirmed that Tribunals cannot decide that the pool chosen by the employer was incorrect since that would mean the Tribunal had, in effect, become the decision-maker.