Z Valimulla v Al-Khair Foundation

The Employment Appeal Tribunal allowed the appellant's appeal in part because the Employment Tribunal had failed to make sufficient findings about the employer's approach to selecting a redundancy pool and had not determined whether the claimant was meaningfully consulted about being placed in a pool of one. The EAT applied the statutory framework in the Employment Rights Act 1996 (in particular ss.98 and 139) and key authority on pooling and selection (including Taymech v Ryan and Capita Hartshead Ltd v Byard) to require scrutiny of whether the employer had genuinely applied its mind to the composition of the pool and whether consultation occurred at a formative stage. The EAT found the consultation about the claimant's placement in a pool of one was not shown to be meaningful (applying Mogane v Bradford Teaching Hospitals) and remitted the remaining issues to the Employment Tribunal for further determination and remedy.

Background and parties:

• The claimant was employed as a Masjid Liaison Officer (MLO) raising funds for the respondent charity. He worked at the Bolton branch; other MLOs performed similar roles in other locations.
• During the Covid-19 pandemic the respondent reorganised and the claimant was dismissed by reason of redundancy, having been placed in a pool of one.

Procedural posture and relief sought:

The claimant brought an unfair dismissal claim to the Employment Tribunal. The Tribunal dismissed the claim, accepting the respondent's evidence that the claimant's role was unique and that consultation and the selection process were fair. The claimant appealed to the Employment Appeal Tribunal seeking reversal of that decision.

Issues framed:

1. Whether the Employment Tribunal made sufficient findings of fact and properly scrutinised the employer's decision not to pool the claimant with other MLOs (pooling and whether the employer genuinely applied its mind to pool selection).
2. Whether the Tribunal addressed the claimant's complaint that he was not consulted about being placed in a pool of one and whether consultation was meaningful.
3. Whether a finding in the Employment Tribunal (that vacancies in Croydon had been offered) was unsupported by evidence (conceded and to be addressed at remedy if necessary).

Reasoning and decision:

The EAT reiterated that once a redundancy reason is established under s.139 ERA 1996, the Tribunal must assess fairness under s.98 ERA 1996, considering the range of reasonable responses open to an employer. The EAT applied authorities (including Williams v Compair Maxam, Taymech v Ryan and Capita Hartshead Ltd v Byard) that instruct tribunals to scrutinise whether an employer genuinely applied its mind when selecting a pool. On the facts, the Employment Tribunal had accepted without explanation that the claimant's role was "unique" and placed him in a pool of one without adequate analysis of similarities or differences between roles or why pooling was inappropriate. The EAT also applied Mogane v Bradford Teaching Hospitals and concluded that consultation must take place at a formative stage to be meaningful; here the timing and substance of consultation about the pool decision were insufficiently addressed. The EAT allowed the appeal on grounds 1 and 2, substituted the decision on consultation (finding procedural unfairness as to that issue) and remitted the case to the Employment Tribunal for reconsideration of pooling, any consequential factual findings and remedy. The EAT directed remission to a different judge to avoid repetition and delay.

Appeal allowed in part. The EAT held that the Employment Tribunal had not adequately scrutinised the employer's selection of a pool (it accepted the employer's assertion that the claimant's role was 'unique' without sufficient reasoning) and had failed to determine whether the claimant was meaningfully consulted about being placed in a pool of one. For those reasons the dismissal process was procedurally unfair in respect of consultation; the EAT substituted the decision on consultation and remitted remaining issues (including pooling and remedy/Polkey reduction) to the Employment Tribunal for rehearing, to be allocated to a different judge where practicable.

Appeal from a decision of the London South Employment Tribunal (Employment Judge Wright) dated 22 September 2021 (judgment sent 28 September 2021) to the Employment Appeal Tribunal, which delivered judgment on 10 October 2023 ([2023] EAT 131).