A Meaningful & Genuine Redundancy Process: Mogane v Bradford Teaching NHS Foundation Trust
Key Contact: Claire Knowles
Author: Laura Spence
The Employment Appeal Tribunal recently found that in the case of Mogane v Bradford Teaching NHS Foundation Trust, a case involving a nurse that was made redundant to combat financial difficulties of the Trust, was unfairly made redundant, highlighting the importance of a genuine and meaningful consultation for a redundancy process to be fair.
Ms Mogane and one of her colleagues carried out similar roles and were both employed on a series of fixed-term contracts. The Trust made the decision to make Ms Mogane redundant, on the basis that her contract was expiring sooner than her colleague’s. This placed the claimant into a pool of one, rather than including her colleague who had a sufficiently similar role and set of skills to be considered for redundancy alongside the claimant.
Ms Mogane was informed of the Trust’s decision that she was at risk of redundancy and subsequently, the period of consultation was commenced. An offer of suitable alternative employment followed but despite this effort, she was made redundant. Ms Mogane took this to a tribunal and after a failed unfair dismissal claim, she appealed with the EAT, which was found in her favour. The EAT concluded that she had been dismissed unfairly on the grounds that there had not been proper consultation. The EAT took the opportunity to highlight that consultation is a fundamental aspect of a fair redundancy procedure which applies equally to individual and collective redundancy situations.
The EAT found that a consultation that takes place before the employee has a chance to influence the decision could not be considered genuine and meaningful.
The EAT also noted that employers should not act arbitrarily between employees when deciding the selection criteria. In this case, pinpointing the claimant’s contract expiry date as the sole criterion was considered to be arbitrary and it was unreasonable to identify that criterion without consultation.
Whilst clearly providing direction for single redundancy situations, this case also provides useful lessons for larger redundancy situations. Firstly, where there is more than 1 employee in a comparable role, pools of one employee should not be assumed unless proper prior consultation has led to such a pooling. Secondly, this consultation needs to take place early enough so that the employee(s) can potentially influence the outcome. In this case Ms Mogane was stripped of this chance. Lastly, arbitrary choices for pooling and selection may breach important implied terms of trust and confidence and, therefore, the rationale of the employer should always be explainable. In this case the employer failed to explain why the decision to dismiss Ms Mogane without consultation was reasonable. Going forwards, to minimise risk of breaching these terms, the EAT have effectively reminded us that employers should always practice a thorough and meaningful consultation process.
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