No consultation? Unfair redundancy

Peninsula Blog

November 03 2022

An NHS Trust unfairly dismissed an employee when it did not involve her properly in redundancy consultation.

The Employment Appeal Tribunal, in Mogane v Bradford Teaching Hospitals NHS Foundation Trust, overturned the decision of the original tribunal.

The employer, a research unit, had been operating at a loss for some time, but had been sustained by the Trust which it was part of. It was decided, however, that this predicament could not continue and that a cost cutting exercise was needed.

As part of this, redundancies were to be made. One employee was to be made redundant based on the fact that her fixed term contract was due to come to an end soonest.

The claimant was a Band 6 nurse. Another Band 6 nurse was also working within the unit; their fixed term contract had almost two years left to run.

The employer’s HR team questioned the rationale of the decision, in particular why it was this fixed term contract in particular that had been identified to go. It was confirmed that this decision had been made simply because that was the contract coming up for renewal the soonest.

It was only then that consultation was initiated with the employee but did not include the rationale behind her selection for redundancy; instead focussing on whether any other suitable employment was available.

The employee brought a claim for unfair dismissal which was not well founded, according to the employment tribunal.

In overturning the tribunal’s decision, his Honour Judge Beard had some interesting comments.

He referred to the principles established in Williams v Compair Maxam [1982] and Polkey v AE Dayton Services Ltd [1987], stating that consultation is an aspect that is fundamental to a fair redundancy process.

“In order that consultation is “genuine and meaningful” a fair procedure requires that consultation takes place at a stage when an employee or employee representative can still, potentially, influence the outcome.

“In circumstances, as here, where the choice of criteria adopted to select for redundancy has the practical result that the selection is made by that decision itself, consultation should take place prior to that decision being made.

“It is not within the band of reasonable responses, in the absence of consultation, to adopt one criterion which simultaneously decides the pool of employees and which employee is to be dismissed.

“The implied term of trust and confidence requires that employers will not act arbitrarily towards employees in the methods of selection for redundancy.

“Whilst a pool of one can be fair in appropriate circumstances, it should not be considered, without prior consultation, where there is more than one employee.”



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