In a redundancy situation, an employer that has decided that there is a redundancy situation must then decide who may potentially be made redundant. Those roles which are selected are generally referred to as the redundancy pool.
The question of who ought to go into the pool is a key part of any redundancy process; however, a pool of only a single person will often be viewed with suspicion.
It is not said often enough that the redundancy must follow both a primarily objective and secondarily subjective test – scored on objectively justifiable criteria.
What Does This Mean?
In reality this means that the focus in the first instance in any redundancy must be the role not the person performing it. As such it is easy to see why a pool of one would on the face of it appear suspicious.
However there are times when a pool of one is reasonable. In the case of Halpin v Sandpiper Books Ltd 2012 AER59 the company only had a single employee working in China, who had previously carried out some administrative tasks. These functions had been taken over by people in the UK. It was decided to shut the company’s arm in China down.
The only employee was informed of the risk of redundancy. Unsurprisingly, he was dismissed on the basis of redundancy.
Why was this case different?
The sole employee in this case was dismissed not because of a subjective criteria rather it was because of the objectively justifiable test of not needing the work which he was doing in the place where he was located. Contrast this with for example the redundancy of a manager in London who was made redundant only to be replaced by a new staff member working in London in the same place purely on the basis that he had not worked with his line manager before. One position is clearly biased and unfair the other is not.
Challenges to selection generally succeed where subjective criteria are applied to a particular employee. They will not succeed where a single employee is made redundant for an objective reason such as in the present case.
Benchmark Solicitors can assist you in preparing and conducting your redundancy procedures, and ensuring that selection criteria are appropriate.
Chris Tuckett, Solicitor – 19 June 2012