Samels v University of Creative Arts

The Court of Appeal considered whether the Employment Tribunal was entitled to conclude that the redundancy selection pool consisted of a single person. The court applied the principle from Taymech v Ryan that definition of a pool is primarily a matter for the employer but that a tribunal must ask whether the employer genuinely applied its mind to the question. The tribunal had found that, at the relevant time, the grade 5 equipment technician post was held only by the claimant and that the employer had not acted in bad faith; those factual findings were open to the tribunal. The court held that the failure to offer suitable alternative employment did not mean the alternative role had to be included in the original redundancy pool, and confirmed that issues such as transferable skills and "bumping" are matters for the employer and factual inquiry rather than a legal requirement to widen the pool.

Background and parties: The claimant, Mr Ian Samels, was dismissed by the University of Creative Arts on grounds of redundancy with effect from 9 April 2009. He brought proceedings in the employment tribunal alleging unfair selection for redundancy; the tribunal found that he was the only person occupying the grade 5 equipment technician role at Farnham and therefore in a pool of one, but concluded he should have been offered alternative employment as a store person and awarded compensation. The claimant's appeal to the Employment Appeal Tribunal was dismissed, and he appealed to the Court of Appeal.

Nature of the claim and relief sought: The claim concerned unfair selection for redundancy; the appellant sought to challenge the fairness of the employer's identification of the redundancy pool.

Issues framed by the court:

• Whether the tribunal was wrong in law to treat the pool as a single-person pool by reference to role/title;
• Whether the test of fairness is objective (reference made to s.98(4) of the Employment Rights Act 1996);
• Whether transferable skills required the employer to widen the pool to include store persons;
• Whether a finding that suitable alternative employment should have been offered meant that that role should have been in the redundancy pool.

Reasoning and conclusions: The court emphasised that there is no rigid rule that a pool must be defined by identical job title and recalled Taymech v Ryan: the central question is whether the employer genuinely applied its mind to defining the pool. The Employment Tribunal had made factual findings (notably at paras. 10 and 17) that at the relevant time only Mr Samels occupied the grade 5 equipment technician role and that the identification of the role for redundancy was not motivated by bad faith. The court concluded those factual findings were open to the tribunal and not perverse. The presence of some overlapping tasks or the tribunal's later conclusion on alternative employment did not require the original pool to include lower-graded, part-time store persons. The court also noted that bumping is voluntary and not obligatory. For those reasons the appeal was dismissed.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal was entitled to find the redundancy pool was a pool of one because at the relevant time only the claimant occupied the grade 5 equipment technician role and the employer had genuinely applied its mind to selection; factual findings of the tribunal were not perverse. The tribunal's finding that suitable alternative employment should have been offered did not mean that the alternative role had to form part of the redundancy pool, and considerations such as transferable skills and bumping were factual matters for the tribunal/employer rather than legal requirements to widen the pool.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (His Honour Judge McMullen QC), which had dismissed the claimant's appeal from the Employment Tribunal decision that found the claimant to be in a pool of one and awarded compensation for failure to offer suitable alternative employment. The Court of Appeal dismissed the appeal.