Mogane v Bradford

The Employment Appeal Tribunal allowed the appeal on the unfair dismissal (redundancy) grounds because the Employment Tribunal failed to explain or justify a decision effectively to select the claimant for redundancy by reference solely to the forthcoming expiry of her fixed-term contract without prior consultation. The EAT held that consultation in redundancy must, as a general principle derived from Williams v Compair Maxim and Polkey v A E Dayton, take place at a formative stage so that it can be genuine and meaningful and give the employee a real opportunity to influence the outcome. The decision to make the claimant redundant had been taken before any consultation; that produced a pool of one and rendered the process arbitrary and unfair. The matter was remitted to an employment tribunal for remedy and, after submissions, ordered to be remitted to a different tribunal panel.

Background and parties: The claimant (a band 6 nurse employed on successive fixed-term contracts since 2016) appealed from an Employment Tribunal decision following a six-day hearing (Employment Judge Lancaster with two members) in January 2021. The respondent was Bradford Teaching Hospitals NHS Foundation Trust and an individual decision-maker. The appeal was sifted as arguable by Mrs Justice Stacey.

Nature of the claim and procedural posture: The primary complaint was unfair dismissal by reason of redundancy. The Employment Tribunal found a redundancy situation and that staffing needed to be reduced. The claimant was selected for non-renewal of her fixed-term contract; an alternative post of lower band was offered but not taken. The EAT heard a single matter of appeal concerned with whether the selection process and consultation were fair and whether the Tribunal gave adequate reasons.

Issues before the EAT:

• Whether the Employment Tribunal erred in its approach to consultation in a redundancy process and whether consultation occurred at a formative stage;
• Whether the correct pool was identified for selection and whether it was reasonable to adopt a pool of one based solely on the imminence of contract expiry;
• Whether the use of a single criterion (contract renewal date) for selection was within the band of reasonable responses;
• Whether the Tribunal’s reasons complied with the requirement to explain its decision (Meek / Rule 62(5)).

Court’s reasoning and findings: The EAT applied the principles in Williams v Compair Maxim and Polkey (as adapted to individual redundancies by Freud v Bentalls and further authorities) and emphasised that consultation must ordinarily take place when proposals are still at a formative stage so that employee representations may potentially affect the outcome. The tribunal below had found that the decision-maker chose non-renewal because the claimant’s contract was the one nearest expiry and the Tribunal accepted that it was within the range of reasonable responses where all relevant employees are on short-term contracts to consider renewal dates. The EAT found, however, that the decision to select the claimant had been made before any consultation with her; that timing meant consultation could not be genuine or capable of influencing the outcome. The result was an arbitrary selection linked solely to contract expiry and the creation of a pool of one without explanation. The Employment Tribunal did not explain why departure from the Williams standards was reasonable in the particular circumstances and therefore failed to give adequate reasons. The EAT concluded the dismissal was unfair and remitted the case for remedy, ordering after submissions that the remittal be to a different employment tribunal panel.

Appeal allowed. The Employment Tribunal erred by failing to address whether consultation and pooling were conducted at a formative stage and by accepting a selection based solely on imminent contract expiry without adequate consultation or explanation. Consultation must be meaningful and take place when an employee can potentially influence the outcome; a decision made before such consultation that produces a pool of one and an arbitrary selection is unfair. The case is remitted for remedy to a different employment tribunal panel.

Appeal from the Employment Tribunal (hearing Jan 2021, Employment Judge Lancaster with Members Ms Norburn and Mr Webb). Grounds of appeal were sifted as arguable by Mrs Justice Stacey. Appeal heard by EAT (His Honour Judge Beard) on 10 June 2022.