In Mogane v Bradford Teaching Hospitals NHS Foundation Trust, the EAT found a dismissal unfair when an employer adopted a redundancy selection criterion that inevitably led to a pool of one without consultation before it made that decision.
Ms Mogane, a nurse, and her colleague in a similar role, worked on a series of fixed-term contracts. When faced with financial difficulties, the Trust put the claimant in a redundancy pool of one, solely because her fixed-term contract was due to end before that of her colleague. It then began to consult the claimant before dismissing her because it had no alternative positions. The Trust effectively chose to dismiss her before it consulted her. That was unfair.
How can you avoid the same error?
Consultation is a fundamental part of a fair redundancy procedure. It applies equally to an individual as well as a collective redundancy situation. Ensure that consultation is genuine and meaningful, by starting when an employee can still potentially influence the outcome. If consulting cannot influence the outcome, it is meaningless.
Does the choice of selection criteria effectively decide whom you will make redundant? If so, consult before deciding the criteria.
The implied term of trust and confidence requires that you do not act capriciously or arbitrarily towards employees in deciding how you will select for redundancy. Selecting Ms Mogane was arbitrary because it related solely to the date on which her fixed-term contract ended. You should be able to explain and justify your rationale for how you propose to select someone for redundancy.
The EAT sounded a note of caution, finding that a pool of one will only be fair in appropriate circumstances and should generally not be considered without consultation where there is more than one employee.
Remember that selecting an employee for redundancy because they are on a fixed-term contract could amount to less favourable treatment based on fixed-term status so you would need to objectively justify it. Also, not renewing a fixed-term contract is treated as a dismissal. If the employee has at least two years' continuous service, then they can complain of unfair dismissal.