Selecting from a pool of one in redundancy situations

The Employment Appeal Tribunal (EAT) recently handed down its decision of Valimulla v Al-Khair Foundation, which offers valuable insights into the legality and fairness of redundancy procedures. The case particularly focuses on the contentious issue of selecting an employee from a “pool of one.” This case underscores the importance of objective and transparent criteria in redundancy selections and highlights the potential pitfalls employers may encounter. 

Background of the case  

Mr Valimulla was employed by the Al-Khair Foundation in the role of a liaison officer, of which there were three others carrying out the same/similar roles in other geographical locations. Work for liaison officers decreased during the pandemic. Yet, Mr Valimulla was the only individual placed at risk of redundancy in a pool of one. The other liaison officers were not placed at risk. Three consultation meetings were held, and after the third, Mr Valimulla was dismissed by reason of redundancy.   

Mr Valimulla brought a claim of unfair dismissal, advancing the argument that the redundancy process was unfair, specifically raising concerns about being selected from a pool of one. At first instance, the employment tribunal (ET) held that he had been fairly dismissed for redundancy as his role was ‘unique’. Consequently, Mr Valimulla appealed on the grounds that the ET had made insufficient findings of fact relevant to the fairness of the Al-Khair Foundation’s approach to pooling for the purposes of selection for redundancy and that the material issue, namely that Mr Valimulla’s complaint that he was not consulted with in relation to being placed in a pool of one, was not adequately addressed. The appeal was allowed, and provided the EAT with an opportunity to examine the fairness and legality of such a selection process. 

Findings from the appeal 

The EAT found that the Al-Khair Foundation had not consulted with Mr Valimulla about the selection pool and that the ET had failed to consider whether a pool of one was a reasonable approach in this particular case. Consequently, the EAT found that Mr Valimulla had been unfairly dismissed on procedural grounds because of a failure to adequately consult about pooling. Despite consultation meetings being held, the consultations did not discuss why Mr Valimulla was placed in a pool of one that did not include the other liaison officers.  

Key takeaways for employers 

This case reiterates the importance of ensuring that there is a fair basis upon which individuals are selected for redundancy, as an employer must be able to demonstrate that they have genuinely applied their mind to the question of pooling. In addition, this case underpins the importance of the consultation process and the fact that discussions should be meaningful and genuine. In this situation, consultation took place after the decision had been made to place Mr Valimulla in a pool of one. Therefore, the EAT questioned how the consultation meetings could have been “meaningful” given that the key issue of the pool was not addressed. 

As a reminder, the key points for a fair redundancy dismissal are as follows: 

• Warn and consult employees about the proposed redundancy.
• Adopt a fair basis on which to select for redundancy. 
• Identify an appropriate pool from which to select potentially redundant employees.  
• Use a selection criteria to decide who from the pool is to be redundant.  The criteria should be as objective as possible. 
• Consider suitable alternative employment within the organisation. 

When it comes to selection of the pool, the starting point is to consider which particular kind of work is ceasing or diminishing and which employees perform that kind of work, which should include consideration of, as this case has shown, employees who are doing similar work at different locations. It is important to look beyond the terms and conditions of an employee’s contract and look at the reality of the situation and what the employee does on a day-to-day basis in making decisions regarding the pool.  

If you would like to learn more about redundancy procedures and how to navigate them effectively, please get in touch. I can be contacted on 0330 818 3287 or via email at rianna.billington@birkettlong.co.uk