Guernsey: The Pitfalls Of Pool Selection

Last Updated: 17 August 2011
Article by Emma Parr

Collas Crill recently acted for the NSPCC in defending claims for unfair dismissal brought by four of its former employees. All four were made redundant when the charity closed its operations in Guernsey in 2010.

The NSPCC followed what it felt to be a fair and thorough procedure in winding down the operations and handling the redundancies of the Guernsey based staff and, on the whole, the Tribunal agreed. Three of the four claims were dismissed. The Tribunal found that:

  • The NSPCC had followed a genuine and effective consultation process in relation to the redundancies;
  • The NSPCC had made reasonable and appropriate attempts to minimise redundancies, and support those facing redundancy with, among other assistance, offers of alternative employment; and
  • Those members of staff who had been made offers of ongoing employment with the charity had chosen to leave voluntarily in opting not to take up those offers, and had not been dismissed at all.

However, one of the four redundancies was found to have been unfair on the basis that the employee had not been considered for one of two roles which was under review by the charity as being retained on the island. NSPCC's decision not to consider the employee for either of these roles proved detrimental.

The facts: the employee who had been unfairly dismissed was a manager, and not a practicing social worker; the retained roles under consideration by the charity, however, were at practitioner level. The employee was a qualified social worker but had not fulfilled that role for a considerable period of time and was not currently qualified to practice; he would have required significant refresher training before he could do so. For this reason and because it considered the employee too experienced, the NSPCC had not considered the employee for the roles it was proposing to retain and instead only considered the two practicing social workers as the relevant 'pool'.

The NSPCC argued that it had: a) engaged in genuine and effective consultation with staff, which at the time had not raised the suggestion that the employee may be suited to the role; and b) invited all employees affected by the closure to fill in 'redeployment forms' to express their interest in alternative employment with the charity. As the employee raised no interest in the roles at the time of the consultation, and did not complete the forms expressing an interest in redeployment, the NSPCC formed the view that he did not need to be considered for the roles it intended to retain.

The Tribunal did not accept the charity's line of reasoning, instead it ruled that in considering redundancies, and who should be in any relevant pools for selection, the employer must consider all those capable of doing the job, and not only those who are currently working in a job of the same title. It was therefore irrelevant that the employee was a manager and the retained roles were in social practice; he would have been capable of fulfilling the roles with a modest amount of retraining and should still have been considered.

This decision is important as it reinforces the fact that the onus is upon an employer to consider whether an employee should be within a pool for selection and/or be considered for any ongoing roles. The fact that an employee is given opportunities to express an interest in an alternative role but fails to do so is immaterial, and the price for such a procedural failing can be significant. In this case, the NSPCC was ordered to pay the employee 6 months' gross salary on top of a generous discretionary redundancy package which had already been paid at termination. A very hefty price to pay for failing to consider the employee for a role which, on the face of it, was unsuitable and in which the employee had expressed no particular interest.

The lesson here is one that has been repeated so many times: when it comes to redundancy, despite a plainly genuine redundancy scenario and a prima facie fair process, employers can still be liable for significant awards if their audit trail does not show the right boxes being ticked. Employers should seriously consider engaging legal assistance in picking their way through the minefield of redundancy procedures to make sure their business does not fall foul of the pitfalls of pool selection or any other of the many problem areas that regularly catch out the unwary.

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.

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