Fulcrum Pharma (Europe) Ltd v Bonassera & Anor

In a redundancy dismissal, an employer has substantial discretion when defining the selection pool. That discretion requires genuine consideration of the pool’s size and meaningful consultation with the affected employee. An employer cannot treat the disappearance of one particular post as automatically determining that its occupant alone is in the pool.

A tribunal must also avoid substituting its own view. The fact that a senior employee previously performed a junior employee’s functions, or that the junior employee acted up during absence, does not by itself require both employees to be placed in the pool. Relevant factors may include the existence of a vacancy, the differences between the roles, remuneration, length of service, qualifications and whether the senior employee would consider the junior role at a reduced salary.

Fulcrum Pharma (Europe) Ltd appealed against a unanimous decision of the Reading Employment Tribunal, which found that Mrs Bonassera had been unfairly dismissed by reason of a flawed redundancy selection process. The tribunal held that the selection pool should have included Mrs Bonassera, the Human Resources Manager, and Mrs Carter, the Human Resources Executive.

The employer argued that it was entitled to select the Human Resources Manager’s post because the requirement for work of that particular kind had diminished. Mrs Bonassera argued that the employer had failed to consider or consult properly on the size of the pool. The central issues were whether consultation had been adequate and whether the tribunal was entitled to conclude that the pool necessarily comprised two employees.

1. Appeal partly allowed. The finding of unfair dismissal stood. The issue whether the selection pool should comprise two employees was remitted to the Employment Tribunal for reconsideration in connection with remedy.

2. The Employment Tribunal was correct to find that the employer had erred by automatically treating the Human Resources Manager’s post as the post at risk and, without meaningful consultation, treating the pool as one. The employer had prepared questions addressing whether both employees should be pooled, but those questions were not put to Mrs Bonassera and there was no evidence that the issue was later considered by the panel.

3. The tribunal was wrong, however, to conclude that any reasonable employer would necessarily have fixed the pool at two. The mere fact that Mrs Bonassera had previously performed the more junior functions, or that Mrs Carter had taken on additional responsibilities during Mrs Bonassera’s absence, did not determine the issue. The tribunal had not adequately considered the differences between the roles or other relevant factors.

4. The approach in Lionel Leventhal Limited v North was approved. Relevant considerations may include whether there is a vacancy, how different the jobs are, the difference in remuneration, the employees’ relative length of service and the qualifications of the employee at risk. A useful starting point may be to ask during consultation whether the senior employee would consider the junior role at the reduced salary.

5. The question whether a subordinate employee should be included in the pool is fact-sensitive. The employer must genuinely apply its mind to the issue and consult fairly, while the tribunal must apply the range of reasonable responses test and avoid imposing its own preferred pool.

• Employment Appeal Tribunal: Appeal from the Reading Employment Tribunal’s decision sent to the parties on 2 February 2010. The EAT upheld the finding of unfair dismissal but remitted the question of the appropriate selection pool for reconsideration.