Fair redundancy procedures came under the spotlight as a result of a case involving a nurse and the Bradford Teaching Hospitals NHS Foundation Trust. So, what was the case and what lessons can be learned from the findings?
The Facts of the Case
A nurse was the claimant in the case. She had been employed by the trust on a series of fixed-term, one-year contracts from 2016 to 2019. In the same band, there was another nurse at the trust who was employed with a fixed-term, two-year contract.
The nurse on the one-year contract claimed unfair dismissal through redundancy. She said that the procedure was unfair because she was chosen for redundancy from a pool containing only her as her contract was due to be renewed first.
She claimed that the trust had not considered alternatives with proper consultation, with the outcome that her redundancy was essentially a foregone conclusion.
An EAT, or Employment Appeal Tribunal, found in favour of the nurse and said that the redundancy procedure meant that the claimant, as a result of being in a pool of one, was already destined for redundancy even before any consultation process had started.
The EAT also found that the trust had failed to follow the proper process during the consultation as it had not considered alternatives to avoid the redundancy. The tribunal stressed that an adequate consultation process forms a vital part of any fair redundancy procedure.
The trust had made a decision on which nurse to make redundant arbitrarily and simply because the claimant’s shorter contract was due to expire first. The tribunal said that by making this arbitrary choice, the trust could be in breach of its implied duty of trust and confidence. You can learn more about this on the ACAS website in the section on constructive dismissal.
The case highlights just how important it is for employers to carry out a proper and fair consultation procedure to mitigate the constructive dismissal claim risk and the likelihood of employees feeling the need to contact Employment Law Friend or other similar companies to pursue a claim.
The consultation has to be genuine and meaningful, which means allowing employees the chance to make any suggestions they may have which could still have the potential to influence the outcome.
The EAT said that in some circumstances, a pool of one could be fair as part of the redundancy process but that it shouldn’t be used in situations where more than a single employee could be considered unless prior consultation has taken place. It is also vital to make sure that no decisions are pre-determined and that there is no discrimination involved in the selection criteria
Controversy over Judgement
This judgement has been considered controversial, however, as it opens the door for employers to artificially widen pools even if there is no genuine risk. It also suggests claims for constructive dismissal may be bought by people feeling that they have been pooled wrongly and in breach of the implied terms of mutual trust and confidence.
Nevertheless, it would be unwise for employers to ignore many aspects of this case, in particular, the importance of ensuring a fair and proper selection process if redundancies are a possibility.