Correct Pool for Selection?

In Fulcrum Pharma v Bonassera and HR Advantage the EAT considered when it might be appropriate to include a subordinate employee in the 'pool' for selection for redundancy and whether employees should be consulted over who should go in the 'pool' in the first place.

The employer in this case decided that an HR manager formed a 'pool' of one for the purposes of a redundancy exercise, without considering whether an HR executive, who was her subordinate, should be included in the pool as well. Having a pool of two would have required the employer to consider the possibility of 'bumping' – demoting the manager into the executive role and making the executive redundant instead.

The point was particularly relevant as the executive post was one which the more senior "at risk" employee had performed previously.

The EAT decided that, in this case, the employer should not automatically have decided on a 'pool' of one without entering into consultation with the manager as to the size of the pool and considering with her whether she would be prepared to accept alternative subordinate employment in the executive role.

Point to Note -

  • This case illustrates the importance for employers of being able to show that they have considered, and properly consulted with affected employees about, whom to include in a redundancy pool. The EAT made it clear that the onus is on the employer to raise the issue during the consultation process. The EAT commented that "a starting off point may be to determine within the consultation process whether the more senior employee would be prepared to consider the more junior role at the reduced salary".
  • The EAT confirmed that it will also be necessary to consider how different the two jobs are – particularly in terms of remuneration. The relative lengths of service of the two employees will also be a relevant factor.

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