Importance of correct pooling in a redundancy exercise

The Claimant was employed as an HR Manager and was supported by an HR executive.  In April 2009, the Claimant was informed that she was at risk of redundancy, but the HR executive was not put at risk.

The company then commenced a consultation period, during which, the Claimant made it clear that she felt that the HR executive should also have been put at risk and furthermore made redundant, on the basis that she could cover the HR executive’s role.  The Company dismissed the Claimant on the grounds of redundancy and she submitted a claim for unfair dismissal.

The employment tribunal found that the Claimant had been unfairly dismissed, and gave the view that the HR function was being reduced from two to one and as such, both employees should have been included in the pool.

The Employment Appeal Tribunal agreed with the tribunal’s finding of unfair dismissal based on the company’s failure to consider the possibility of pooling both employees.  However, the EAT went on to say that the fact that the Claimant was able, and had on occasion carried out the HR executive’s role and the fact that the HR executive had carried out the managers role on occasion, were not of themselves reasons to use a pool of two.

The EAT confirmed previous guidance that factors to be confirmed when considering if a subordinate employee should be brought into a pool were:

1. Whether or not there is a vacancy;
2. How different the roles are;
3. The difference in pay;
4. The relative length of service of the employees;
5. The qualifications of the employee at risk of redundancy.

The EAT went on to suggest that a relevant consideration would also be whether the more senior employee would be prepared to consider the more junior role at the lesser salary.

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