This case found that a dismissal on the same date was not inevitable where there was procedural unfairness and a redundancy pool of one.
This is a stark reminder that, no matter what size the business or how many people you think may be affected by a redundancy situation, if you decide that the redundancy pool is a pool of one, all processes and procedures still need to be followed.
It is important to remember that where an employee is dismissed by reason of redundancy, without any consultation or other process, and that dismissal is deemed unfair, in deciding what deduction (if any), under Polkey, should be made to reflect that a fair process might have still led to the same outcome (i.e. a dismissal) an Employment Tribunal, according to the Employment Appeal Tribunal (‘the EAT’), should consider:
- what the outcome would have been, had there been warning and genuine consultation, with the employee about the redundancy and the selection pool (e.g. whether it would still have been a pool of one, or extended);
- what criteria would have been applied, and what the chance was that the employee in question would have been fairly dismissed, had a pool of more than one been chosen;
- what selection criteria would have been applied, and the likely outcome of their application; and
- how long any consultation would have taken, including the impact the same would have been on the timing of the dismissal, even if the conclusion was that the dismissal would have been inevitable.
Here, the EAT upheld the appeal, stating that:
- the possibility of a pool of one being fairly chosen did not mean that the dismissal was bound to have taken place when it did;
- the Employment Tribunal’s reasoning failed to consider the requirement for some warning and consultation, even if the employer is small, and even where a pool of one was reasonable; and
- some warning and consultation could have resulted in a larger selection pool and, in turn, might have affected the choice of the selection criteria. Further, even if the dismissal was inevitable, it might have been delayed, which would mean some compensation was due.
Are you contemplating redundancies?
Do you need any help and support?
Even if you think it’s straight forward, legal advice should always be sought.
Please do get in touch if you need any help or advice:
Connect with us on LinkedIn – Peach Law (HR & Employment Law Specialists)
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