MOGANE v BRADFORD TEACHING HOSPITALS NHS FOUNDATION TRUST & Ors.

In a redundancy dismissal, meaningful consultation must ordinarily occur while the proposal remains capable of being influenced. The principles in Williams, adapted where necessary, apply to individual as well as collective redundancies.

An employer may in an appropriate case use a pool of one. But, where more than one employee could be selected, it is outside the range of reasonable responses to select one employee solely because their fixed-term contract expires first, without prior consultation. That approach arbitrarily determines both the pool and the dismissal. A tribunal must give adequate reasons for accepting any material departure from fair redundancy procedure under section 98(4) of the Employment Rights Act 1996.

The claimant, a Band 6 nurse on a fixed-term contract, was dismissed for redundancy after the respondent research unit required reduced staffing. Another Band 6 nurse was also employed on a fixed-term contract.

The respondent selected the claimant because her contract was due for renewal first. It made that decision before consultation with her. Later meetings concerned possible alternative employment, which did not result in a suitable role.

The Employment Tribunal dismissed the unfair-dismissal claim. The claimant appealed, contending that the Tribunal had erred on consultation, the redundancy pool, the sole selection criterion, the range of reasonable responses, and the adequacy of its reasons.

1. Appeal allowed. The dismissal was unfair. The case was remitted to a differently constituted Employment Tribunal to determine remedy.

2. The statutory question remained fairness under section 98(4) of the Employment Rights Act 1996. The principles in Williams v Compair Maxim Ltd and Polkey v A E Dayton Services Ltd remained sound industrial-relations practice. Subject to appropriate adaptation, they apply to all redundancy situations, including those without collective representation.

3. Consultation must be genuine and meaningful. It should occur at a formative stage, when an employee's representations can still potentially affect the outcome. A departure from that approach can be fair only where it is reasonable, and the Tribunal must explain why.

4. A tribunal should not readily interfere with an employer's choice of redundancy pool. Its task is nevertheless to decide whether the pool was one which a reasonable employer could adopt in all the circumstances. The implied term of mutual trust and confidence also precludes arbitrary differentiation between employees.

5. Here the choice of the employee whose contract expired first selected the claimant, created a pool of one, and predetermined dismissal before consultation. Consultation about redeployment could not cure the absence of consultation on selection. Although a pool of one can be fair in an appropriate case, it should not be adopted without prior consultation where more than one employee exists. The Tribunal supplied no non-tautologous explanation for treating that process as reasonable.

6. The Tribunal had also failed to give sufficient reasons on the specifically raised issues of consultation and pooling. Its decision could not be sustained on a benign reading of the judgment.

• Employment Appeal Tribunal: Appeal allowed. The Employment Tribunal's dismissal of the unfair-dismissal claim was set aside, and remedy was remitted to a different panel.
• Employment Tribunal: Employment Judge Lancaster, sitting with members, dismissed the claimant's unfair-dismissal complaint following a six-day hearing in January 2021.