In the recent case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust, the Employment Appeal Tribunal (“EAT”) has held that the dismissal of a nurse was unfair where the selection criteria put her in a selection pool of one and no consultation took place before deciding on the selection pool.
Ms Mogane and another nurse in a similar role were employed on a series of fixed-term contracts. The Trust was facing financial difficulties and decided to make redundancies. Instead of placing both nurses into a selection pool and applying criteria to choose one of them for redundancy, it decided that Ms Mogane should be made redundant because her fixed-term contract would expire first. The only selection criterion used was therefore that her contract would end before her colleague’s. The Trust then went through a redundancy consultation process with Ms Mogane which focussed on trying to find alternative employment, and eventually dismissed her by reason of redundancy.
Although the Employment Tribunal in the first instance found the dismissal to be fair, the EAT overturned this decision. The EAT noted the following key principles from established case law:
In this case, the Trust’s decision to select Ms Mogane because her contract was the first up for renewal immediately identified her as the person to be dismissed, before any consultation had taken place with her. Her selection was arbitrary and based only on when her fixed-term contract would end. Given that she was effectively chosen for dismissal before any consultation had taken place, the EAT found that she had been unfairly dismissed.
Sobia Ahmad comments:
“Employers should aim to start the consultation process at an early stage, when the employee may still be able to influence the outcome (for example, by adopting different/additional selection criteria or expanding the selection pool). If an employer proposes selection criteria which decide the selection pool and will result in the inevitable dismissal of a particular employee, they must consult with the employee before adopting the criteria. Failing to do so will be unreasonable and will most likely result in the dismissal being unfair, because any consultation which follows will have been meaningless. Employers should also take care when deciding on the appropriate selection pool where there are multiple employees performing a similar role; placing only one of them into the pool may be unfair without prior consultation.”
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