Z Valimulla v Al-Khair Foundation

In a redundancy dismissal, a tribunal must separately assess the fairness of selecting the particular employee after finding that a genuine redundancy situation exists. Where an employer uses a selection pool, the tribunal must scrutinise whether the employer genuinely considered the composition of that pool and whether its approach fell within the range of reasonable responses.

Consultation must be meaningful. It must occur while the employee can influence a provisional proposal, including a proposal to select that employee from a pool of one. Informing the employee after the decisive selection has been made does not ordinarily satisfy that requirement.

The claimant, a Masjid Liaison Officer based in Bolton, was dismissed for redundancy during the Covid-19 pandemic. Other employees performed the same or similar fundraising role in other geographical areas. The respondent selected the claimant from a pool of one.

The London South Employment Tribunal dismissed his unfair-dismissal claim. It found a genuine redundancy situation and accepted that the claimant's role was unique, despite observing that the selection criteria and pool could have been explained more clearly.

On appeal, the claimant contended that the Tribunal had not made sufficient findings to assess the fairness of the pool of one and had failed to decide his complaint that he had not been consulted about it.

1. Appeal allowed on grounds 1 and 2. The Tribunal had correctly found a genuine redundancy situation, but that did not determine whether dismissal of this particular employee was fair. Under section 98(4) of the Employment Rights Act 1996, it had to assess the respondent's selection process.

2. The Tribunal accepted, without adequate analysis, the assertion that the claimant's role was unique and that a pool of one was appropriate. It made no findings about the claimant's work, the work of the other Masjid Liaison Officers, the relevant similarities or differences, whether pooling had been considered, or the rationale for excluding the other officers. It therefore failed to scrutinise whether the respondent had genuinely applied its mind to the pool and whether its approach was within the range of reasonable responses. The principles in Capita Hartshead Ltd v Byard [2012] IRLR 814 and Taymech v Ryan [1994] EAT/663/94 applied.

3. The consultation meetings occurred only after the decisive selection had been made. The claimant could make proposals about preserving his role, but the Tribunal did not decide whether he had been consulted about his selection from a pool of one while other officers performed similar work elsewhere. Meaningful consultation requires a provisional proposal and rationale, an opportunity for feedback, and genuine consideration of whether the responses should alter the proposal before a decision is made. The approach in Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2023] IRLR 44 applied.

4. There was no meaningful consultation on an issue central to selection. In the absence of particular reasons making that approach fair, the only permissible conclusion was that the dismissal was procedurally unfair. The EAT substituted that finding on ground 2.

5. Ground 1, together with the issues of the likely outcome had consultation occurred, any Polkey reduction, and remedy, was remitted to a differently constituted Employment Tribunal. Ground 3 was conceded and required no further determination.

• Employment Appeal Tribunal: appeal allowed in part; the dismissal was substituted as procedurally unfair and the remaining pooling and remedy issues were remitted.
• London South Employment Tribunal: on 22 September 2021, with reasons sent on 28 September 2021, dismissed the claimant's unfair-dismissal claim.