Mogane v Bradford Teaching Hospitals NHS Foundation Trust – the Employment Appeal Tribunal considers the risk of having only one employee at risk of redundancy

The employee in this case was an NHS nurse working under a number of fixed term contracts. In 2019 the employee was told that the Trust she was working for was facing financial difficulties and so she would be made redundant as her contract was the one that was due to be renewed the soonest. No consultation had taken place with the employee to agree that the selection criteria would be solely focussed on whose contract was due to be renewed the soonest. Instead, the only consultation with the employee was about whether any alternative employment could be found for her. This was unsuccessful and so the employee was made redundant.

The employee claimed unfair dismissal on the grounds that a fair redundancy consultation process had not taken place. The case went to the Employment Appeal Tribunal which held that a fair redundancy consultation process had not taken place and so the employee’s claim for unfair dismissal was successful. It was recognised that a redundancy consultation must be genuine and meaningful and for this to happen consultation must be started when the employee can still potentially influence the outcome of the consultation. Whereas, in this case the employee could not do this because the selection criteria had already been determined before the consultation had started with her, which resulted in her being selected for redundancy. The only consultation the employee could take part in was whether there were any suitable alternative roles for her within the Trust.

This decision does not prevent there from being one selection criteria in a redundancy process provided that prior consultation takes place with the employees at risk of redundancy about the proposed selection criteria. However, it does prevent there being one selection criteria without any consultation with the employees at risk of redundancy where that selection criteria simultaneously decides the pool of employees at risk of redundancy and which employees will be dismissed.

This case is a useful reminder that redundancy processes should be carefully planned in advance of any process starting. If you need advice about conducting a redundancy process then please contact a member of the team on 0161 832 3434.