Before deciding to dismiss an employee on the ground of redundancy, employers must follow a fair procedure which must include “genuine and meaningful” consultation. In Mogane v Bradford Teaching Hospitals NHS Foundation Trust and anor, the EAT held that it was not fair to dismiss a nurse where the criteria for selection meant that she was the only employee to be placed in a pool of one and selected for redundancy without any prior consultation.
Ms Mogane, a Band 6 nurse, had been employed on a series of one-year contracts by the hospital since 2016. On 21 March 2019, she was invited to a meeting at which she was told that the research unit where she worked was in serious financial difficulties and that it needed to make redundancies.
Shortly after the meeting in March, she was told that she was going to be made redundant as her contract was coming up for renewal. Although there was another Band 6 nurse at the unit who was on a two-year fixed term contract, Ms Mogane was identified for redundancy because hers was due to expire before the end of the other nurse’s contract. Her employment was duly terminated at the end of December 2019.
Ms Mogane claimed unfair dismissal.
The tribunal held that where all relevant employees were on short-term contracts, it was within the band of reasonable responses for the trust to take a decision based on which contract was due for renewal at the particular point when they needed fewer Band 6 nurses.
On appeal, Ms Mogane challenged the tribunal’s decisions with regard to the procedure that the trust had adopted for consultation; the pool it had identified for selection; the criteria it had adopted for selection on the basis that they were not within the bounds of reasonable responses; and finally that the tribunal had not provided adequate reasons for its decision.
The EAT agreed with Ms Mogane that the tribunal had failed to consider consultation at the formative stage of the process in accordance with the well-established principles in Williams v Compair Maxam Ltd. Although Williams was a case concerning collective redundancies, consultation was a fundamental aspect of a fair procedure and, as such, applied equally to individual redundancy situations as in this case.
In order to ensure that consultation is “genuine and meaningful” a fair procedure requires that consultation takes place at a stage when an employee or employee representative can still, potentially, influence the outcome. In circumstances, as in this case, where the choice of criteria adopted for selection meant that her selection was made based on that decision alone, the consultation should have happened prior to it being taken.
The EAT also held that it was not within the band of reasonable responses, in the absence of consultation, to adopt one criterion which decides the pool of employees, and, at the same time, which employee is to be dismissed. The implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy. Whilst a pool of one can be fair in appropriate circumstances, it should not be considered, without prior consultation, when there is more than one employee.
As the tribunal had not explained why it was reasonable for the trust to have decided on the pool for selection and that Ms Mogane should, therefore, be dismissed long before any meetings about her selection or any consultation took place, the appeal was allowed.
Although case law has established that an employer need only apply their mind to the pool from which employees are to be selected for redundancy, what the employer cannot do is determine which employees are to be included in the pool on the basis of the selection criteria, without prior consultation. In this case, the employer had determined that the employee whose fixed term contract was due for renewal first was in a pool of one, meaning that the decision to dismiss her had already been taken at the point the pool of employees was decided. This was unfair.