The recent Employment Appeal Tribunal (EAT) decision of Valimulla v Al -Khair Foundation provides a useful reminder of the importance of consulting with employees in relation to a proposed redundancy pool, including the selection of an employee from a pool of one. In this particular case, the EAT held that an employee was unfairly dismissed because his employer failed to consult with him in relation to his placement into a pool of one.
Background
Mr Zubair Valimulla had worked as a Masjid Liaison Officer (MLO) for a faith-based charity called Al-Khair Foundation since February 2018. Mr Valimulla's role involved fundraising in the community. The charity employed three other employees in other locations who also carried out a MLO role. Mr Valimulla was the only MLO to work from home rather than being branch-based.
During the COVID-19 pandemic, the charity faced a decline in contributions which was largely due to the places of worship being closed. Due to this, Mr Valimulla was placed on furlough, along with others carrying out the MLO role. The charity subsequently decided to make redundancies, however, Mr Valimulla was the only MLO selected at being at risk of redundancy and was placed into a consultation pool of one.
Three consultation meetings took place, and, at the third meeting, the charity dismissed Mr Valimulla by reason of redundancy. Mr Valimulla subsequently brought a claim of unfair dismissal at the Employment Tribunal (ET).
A reminder of the legal principles for dismissals on the grounds of redundancy
Redundancy is one of several potential fair reasons for dismissal. Whilst there is not one prescribed process for selecting employees for redundancy, employers need to ensure that they follow the correct procedures and apply them fairly.
A redundancy dismissal is likely to be unfair unless: the employer identifies an appropriate pool of employees for selection; consults with employees in the pool; applies objective selection criteria to those in the pool and considers suitable alternative employment where appropriate. A Tribunal will assess an employer's approach when looking at the fairness of a dismissal.
When it comes to selecting a pool, an employer must be able to demonstrate that they have genuinely applied their mind to the question of pooling. This includes looking at the way in which the pool has been selected and whether other employees perform similar roles.
ET decision
The ET found that the dismissal had been fair as Mr Valimulla had a unique role and was in a self-selecting pool of one. Mr Valimulla appealed to the EAT arguing that firstly, the charity had not consulted with him about the proposed pool of one and secondly, on the question of the employer's decision not to pool him with the other MLOs.
The EAT decision
Regarding the decision not to pool Mr Valimulla with the other MLOs, the EAT found that the ET had not given reasons about why they had accepted the charity's arguments that Mr Valimulla's role was unique. Whilst a redundancy situation had arisen because there was a reduced requirement for the charity to carry out MLO work, it was found that there was not a reduced requirement for MLO work to be carried out at a particular geographical location (had this been the case then this may have justified a smaller pool). This point was remitted back to a new Employment Tribunal.
The EAT found that Mr Valimulla had been unfairly dismissed on procedural grounds because of the charity's failure to consult about pooling. Even though three consultation meetings were held with Mr Valimulla, none of these meetings discussed why Mr Valimulla was placed in a pool of one.
As to the consultation, the EAT remarked that a redundancy consultation needs to be "meaningful". As the consultation had only started after Mr Valimulla had been placed in a pool of one, the EAT said it was "unclear" how the consultation could have been meaningful. Meaningful dismissals involve clear communication to affected employees, including listening and considering an employee's concerns before any decisions are finalised.
Comment
This case provides a few reminders for employers in relation to redundancy pooling, particularly where an employer proposes to select a pool of one.
- Employers should consider the roles of the potentially affected employees, the similarities and differences between the roles of other employees and the rationale behind the proposal for a particular pool.
- The decision-making process should be well-documented, including the assessment of the proposed pool and any decisions and rationale behind this.
- If an employer considers a particular employee's role is genuinely "unique", this needs to be examined to ensure that the role is genuinely distinct and not simply a way of narrowing the size of the pool.
- Employers should always meaningfully consult with the impacted employees irrespective of the number of redundancies planned. To ensure a consultation process is meaningful, this particular case reminds us that this involves setting out provisional proposals and rationale to impacted employees and providing them with an opportunity for feedback, comments or observations. It is important for consultations should take place at an early stage in the process in order for an employee to have the opportunity to make genuine impact on the process. An employee's response to a proposed pool should be considered by an employer with an "open mind" including whether the initial proposal needs to be altered and if not then why not.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.