In Valimulla v Al-Khair Foundation, the Employment Appeal Tribunal (EAT) held that a redundancy dismissal was unfair because the employer failed to consult with the employee in a pool of one.

Background

The Claimant worked as a liaison officer in the employer’s Bolton branch.  Three other employees carried out a role elsewhere in the UK, namely raising funds for the charity.  As a result of the Covid pandemic, donations reduced dramatically and all employees tasked with raising funds were furloughed, including the Claimant. However, he was also put at risk of redundancy in a pool of one and was not consulted about that pool. The employer thought they were acting reasonably, as they did consult with the Claimant over three separate meetings. He was then dismissed in October 2020 and lodged a claim for unfair dismissal.

The Employment Tribunal’s decision

They upheld the dismissal as a fair one. They agreed with the employer that the Claimant was in a self-selecting pool of one, as he was the only liaison officer in the Bolton branch and that role was redundant.  The Claimant appealed to the EAT on several grounds, the relevant one here being that he was not consulted about the pool.

Did the EAT agree with the Employment Tribunal’s decision?

No it did not. They found the dismissal to be unfair, deciding that consultation must take place when it is possible it will have a chance of making a difference. In this case, that should have been before the ‘pool of one’ was decided. The dismissal was therefore procedurally unfair and the Claimant was awarded over £16,000 in compensation.

Conclusion

Whilst this case may be fact-specific (the EAT found that the Claimant should reasonably have been put in a pool with other employees doing a similar role in other locations and the Claimant did specifically raise the issue of a lack of consultation on the pool in the early stages), it is a stark reminder to employers that they need to start consultation early on when considering making redundancies, even if there is no requirement for collective consultation. We have often seen employers not consult with at risk employees about deciding the pool for selection, particularly when there is a pool of one.  The decision here demonstrates that, if this happens, then there is a real risk of an unfair dismissal finding.  Employers should seek legal advice when considering redundancies, even if they are small in number and appear, on the face of it, to be relatively straightforward.

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