Samels v University of Creative Arts

There are no fixed rules governing the composition of a redundancy selection pool. The employer must genuinely consider who is at risk, and the pool need not be confined to employees with the same or similar job titles. The employment tribunal must assess whether the employer’s choice falls within the range of reasonable responses without substituting its own business judgment. Whether employees perform sufficiently similar or interchangeable work is ordinarily a question of fact. A finding that an employee should have been offered suitable alternative employment does not require that role to have been included in the redundancy pool, particularly where it is at a different grade. An employer is not required to consider bumping another employee.

Mr Ian Samels was dismissed for redundancy from his role as an employment track technician. The employment tribunal held that he was in a pool of one and rejected his complaint that the selection process was unfair, although it awarded compensation for the failure to offer suitable alternative employment as a store person. The Employment Appeal Tribunal dismissed his appeal.

The Court of Appeal considered whether the employer had adopted a fair basis for identifying the redundancy pool, including the relevance of job titles, similar work, transferable skills and the alternative store-person role.

1. Disposition. The Court of Appeal dismissed the appeal. Lady Justice Arden gave the judgment, with Lord Justice Sullivan and Sir Nicholas Wall agreeing.
2. Redundancy pool. There are no fixed rules governing the employer’s definition of the pool. The employer primarily determines its composition, while the employment tribunal must decide whether the chosen pool falls within the range of reasonable responses. The tribunal must not substitute its own view of how the business should be managed. Taymech v Ryan [1994] EAT/663/94 confirmed that the pool need not be limited to employees doing the same or similar work, but the employer must genuinely apply its mind to the issue.
3. The tribunal had not selected the pool by reference to job title alone. It was entitled to treat Mr Samels as the only employee occupying the relevant grade 5 equipment-technician role. The store persons performed some overlapping tasks, but there was no finding that their work was sufficiently similar in substance to require inclusion in the same pool. The tribunal’s conclusion was not irrational, perverse or otherwise unavailable on the facts.
4. Fairness and transferable skills. The fairness test under section 98(4) of the Employment Rights Act 1996 is objective. At the pool-identification stage, the relevant question was whether the employer had genuinely considered who should be included. Whether employees possessed relevant or transferable skills and performed tasks warranting inclusion was a question for the tribunal, which had found that the employer acted in good faith.
5. Alternative employment and bumping. Identifying the redundancy pool is distinct from seeking suitable alternative employment. The employer must do its best to identify another available role, but that role need not be at the same grade. The finding that the store-person post should have been offered did not make the pool-of-one conclusion legally perverse. Nor was the employer required to consider bumping another employee; bumping was a voluntary procedure.
6. An employment tribunal need not address every point raised, provided it deals with matters essential to its decision.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 1152: appeal dismissed.
• Employment Appeal Tribunal — dismissed Mr Samels’s appeal from the employment tribunal.
• Employment Tribunal — found a redundancy pool of one, rejected the unfair-selection complaint and found no bad faith, but awarded compensation for failure to offer suitable alternative employment.