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Background: A fair redundancy procedure should include the following:
Facts: The employee, Mrs Mogane, was one of two Band 6 nurse employed by Bradford Teaching Hospital NHS Foundation Trust (the Trust) on a series of fixed-term contracts. The Trust decided to reduce the number of Band 6 nurses as it needed to make cost savings. The Trust met with Ms Mogane to explain its financial difficulties, but did not discuss its plans for staff reductions. Shortly after this meeting, the Trust decided to select Ms Mogane for redundancy on the basis that her fixed term contract was the first to expire. At this point the Trust consulted with Ms Mogane, but only about finding alternative employment. As none was found, Ms Mogane was dismissed by reason of redundancy.
Ms Mogane brought a Tribunal claim for unfair dismissal.
Tribunal decision
The Tribunal dismissed Ms Mogane’s claim and found that her dismissal was fair.
The employee appealed to the EAT.
EAT decision
The EAT upheld Ms Mogane’s appeal and agreed that she had been unfairly dismissed. The Trust had not followed a fair procedure because Ms Mogane was effectively chosen to be dismissed (by the choice of selection criteria) before any consultation took place. Consultation following this decision was not genuine or meaningful as Ms Mogane had no potential to influence the outcome.
The EAT also said that the Trust had acted in an arbitrary and unreasonable manner by deciding (with no consultation) that the sole selection criteria would be the date of the next fixed term contract to expire. This was a breach of the implied term of trust and confidence.
Implications: This is a warning to employers to consult early where your choice of selection criteria has the practical result of selecting one employee for redundancy. At least do so before the decision on that selection criteria is finalised.
In fact, employers should do so any time that the selection criteria (or size of pool) will likely result in the same number of employees as redundancies. Otherwise the employees may not get the chance to influence the outcome before their dismissal is effectively rendered unavoidable.
The risk of not doing so is that any subsequent dismissals will be unfair and that the employer’s decisions may be considered ‘arbitrary’ and a breach of the implied term of trust and confidence.
The decision is also a warning to employers of the risks of using only one selection criteria – particularly when it leads to a selection pool of one. This opens the door to an argument by the employee that they have been targeted for selection. Using several (objective) selection criteria (such as skills, performance, relevant experience or qualifications) will increase the prospects that a tribunal will find these, and any subsequent dismissal, fair.
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