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The claimant, a band 6 nurse, had been employed by the Trust in its research unit on a series of one-year contracts since 2016, the most recent of which was due to expire on 01 June 2019.

In early 2019, another band 6 nurse, also in the research unit, had been appointed for the first time on a two-year fixed-term contract.

In March 2019, the research unit’s financial circumstances required a reduction in costs, ultimately resulting in the need for redundancies to be made.

The claimant was invited to a meeting by the Trust, during which she was informed about the unit’s financial difficulties.

Soon after the initial meeting, the Trust made the decision that it should be the claimant who should be made redundant, since her contract was due to expire before that of the other band 6 nurse.

The Trust informed the claimant of their decision and consulted with her regarding suitable alternative employment. As no suitable alternative role existed, the claimant was dismissed.

Prior to the decision to place the claimant at risk of redundancy, the Trust had failed to hold a consultation with her and immediately excluded the other band 6 nurse purely because of contract expiry dates.

As the claimant had more than two years’ service, she was able to bring a claim for unfair dismissal.

The employment tribunal dismissed the claimant’s unfair dismissal claim, accepting the dismissal was fair.

The case was then heard by the EAT which overturned the tribunal’s decision. It was found that the claimant’s dismissal was unfair because it was unjust to adopt one criterion – the expiry of the fixed term contract – to determine the outcome prior to any consultation. The EAT noted the following:

  • Consultation is a fundamental aspect of a fair redundancy procedure.
  • The consultation must be a genuine, meaningful, and fair procedure, taking place when an employee or representative can still potentially influence the outcome.
  • The implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy.
  • Although a pool of one can be fair in appropriate circumstances, it should not be implemented, without prior consultation, where there is more than one employee who could be placed in the pool for selection.

The EAT therefore substituted a finding that the claimant was unfairly dismissed for redundancy.

This case is a useful reminder that as part of a fair redundancy process, consultation with the affected employee is essential, requiring consideration before any final decisions about selection are made.

Whilst employment tribunals are often reluctant to interfere with an employer’s decision regarding the pool for selection, they should be satisfied that the selected pool was one that a reasonable employer could adopt in all the circumstances. Therefore, employers considering the pool for selection should take a cautious approach towards the exclusion of those doing the same or similar roles.

Employers should also bear in mind that selecting fixed-term employees for redundancy, without considering the inclusion of permanent employees, could amount to less favourable treatment under the Fixed-term Employee Regulations 2002, unless the selection can be objectively satisfied.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.


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