Halpin v Sandpiper Books Ltd

In redundancy cases, the choice of selection pool is primarily a management decision. An Employment Tribunal must not substitute its own view merely because it would have chosen a wider or different pool. Where the employer has decided to remove a distinct post occupied by one employee, selection may properly operate on a pool of one. The Tribunal must assess fairness under section 98(4) of the Employment Rights Act 1996, but it need not use any particular formula if its reasoning clearly shows that it applied the statutory standard. Once the Tribunal has made clear findings, found a potentially fair redundancy reason, and approved the procedure, appellate intervention is limited.

The Claimant was employed by the Respondent and worked in China developing its sales operation there. The Respondent decided to close the China operation and outsource the work to local agents. The Claimant was the only employee based in China and was treated as being in a selection pool of one. The Employment Tribunal found a genuine redundancy situation, accepted redundancy as the reason for dismissal, and concluded that the consultation and procedure were fair. The Claimant appealed against the Tribunal’s treatment of the selection pool and alleged failure expressly to apply section 98(4) of the Employment Rights Act 1996.

Most grounds had previously been dismissed at a preliminary hearing. The full hearing concerned whether the Claimant had been fairly selected from a pool of one.

1. Appeal dismissed. The Employment Tribunal had not failed to apply section 98(4) of the Employment Rights Act 1996. Its conclusion that the Respondent had done all that could reasonably be expected showed that it had applied the statutory fairness test. A Tribunal need not use a particular verbal formula where its sense is clear (para [15]).
2. The principles in Williams v Compair Maxam [1982] ICR 156 governed the approach to redundancy fairness. The authorities did not require an employer to adopt a particular selection pool in every case.
3. The choice of pool is a management decision. A Tribunal errs if it substitutes its own decision as to whether the pool should contain one employee or a wider group. Pool and selection questions are matters of fact for the Employment Tribunal, subject to the statutory test of reasonableness (paras [14], [17]).
4. In the circumstances, the Claimant was the only employee carrying out the relevant work in China. The management decision that the China post should cease inevitably placed him at risk of redundancy. His previous administrative and analytical duties, which were largely performed by other staff and had diminished, did not require a wider pool (paras [15]-[16]).
5. The Tribunal had also accepted that the redundancy was genuine, that it was the reason for dismissal, and that consultation, alternative-employment inquiries, warning, meetings and appeal arrangements were adequate. There was therefore no error of law justifying appellate intervention. The approach to restraint where an Employment Tribunal has correctly directed itself and made clear findings was supported by Fuller v London Borough of Brent [2011] EWCA Civ 267 (para [17]).

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal’s decision that the Claimant had been fairly selected from a pool of one.
• Employment Tribunal, London South: Judgment sent with Reasons on 14 October 2010. The claim of unfair dismissal was dismissed after findings of genuine redundancy, redundancy as the reason for dismissal, and fair procedure.
• Employment Appeal Tribunal preliminary hearing: Most grounds were dismissed, with the pool-of-one issue directed to a full hearing.