In the recent case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal has considered whether a dismissal was unfair where the employer relied on only one selection criterion which inevitably identified one employee as redundant.
Mrs Mogane, a band 6 nurse, was employed by Bradford Teaching Hospital. The hospital was in financial difficulty and needed to make a reduction in staff. There were two band 6 nurses, Mrs Mogane and one other, both employed on fixed term contracts. The hospital chose just one selection criteria – which fixed term was ending soonest. As Mrs Mogane’s fixed term was due to expire first, she was selected for redundancy. There was an attempt to consult Mrs Mogane about alternative employment, but there was nothing suitable, so she was dismissed as redundant.
She brought an unfair dismissal claim against the hospital. The Employment Tribunal rejected her claim and she appealed to the Employment Appeal Tribunal (EAT).
The EAT held that the dismissal for redundancy had been unfair on the basis that a fair procedure had not been followed. The EAT reminds us that consultation is a fundamental aspect of a fair redundancy procedure. Although there had been consultation about alternative employment, in order that consultation is genuine and meaningful, it must take place at a stage when an employee can still, potentially, influence the outcome. In this case, the choice of one sole selection criterion had the practical result that the selection of Mrs Mogane was inevitable. In this situation, consultation should have taken place prior to the decision about selection criteria being made.
The EAT held that 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. The Hospital had made an arbitrary choice when applying just one selection criteria relating solely to the question of the ending of the fixed term contract.
This case is another reminder of the importance of having genuine and meaningful consultation prior to a decision being made about redundancy.
The use of just one selection criteria for redundancy purposes is not best practice. Employers would be well advised to choose a set of redundancy selection criteria which, as far as possible, are both objective and capable of independent verification.
Where only one selection criteria is used, and this inevitably means only one employee is selected, there must be consultation before the selection criteria is used, to allow the employee to potentially impact the decision.