Case Law - Employers Should Remember To Consult At Risk Employees Over The Selection Pool

Valimulla v Al- Khair Foundation

The Claimant was a liaison officer covering the North-West of England region. The Foundation employed other individuals who carried out the same/similar role in other geographical regions. During the pandemic, the work for these individuals decreased and a redundancy situation arose. The Claimant was the only liaison officer put at risk, and they were therefore placed in a pool of one. The Foundation carried out three consultation meetings with the Claimant, but did not discuss or consult upon the selection pool or why the decision was made. Following the consultation meetings, the Claimant was made redundant and subsequently brought a claim of unfair dismissal against the Foundation.

The Employment Tribunal held that the dismissal for redundancy was fair, and accepted the Respondent’s position that the Claimant had been placed into a pool of one.

The Employment Appeal Tribunal substituted the original finding and ruled that the Claimant had been unfairly dismissed on procedural grounds due to a failure to consult about the pooling group. It ruled that the tribunal had failed to consider whether the pool of one was a reasonable approach, and that the Foundation had not consulted with the Claimant about the pool. It stated that consultation on redundancy, and the selection pool, should take place at a time when it could impact the outcome of the process, and the pool cannot be retrospectively justified.

This case highlights the importance of ensuring the selection pool is carefully thought through and individuals are appropriately selected. This business decision should form part of the consultation process and the consultation should not solely focus on the situation that gave rose to the potential redundancy and ways that it could be avoided.