Redundancy tribunal claim involving a selection pool of one

The claimant in a recent employment tribunal claim sought to argue that her dismissal for redundancy was unfair based on the selection criteria that her employer used.

Barlow v Horwich Farrelly Solicitors ET/415012/19

Ms Barlow was a PA at a solicitors’ firm. She worked for a specific department within the firm known as ‘zest legal’. This was not a separate entity but rather a way of marketing the department and distinguishing it from the rest of the firm.

From 2017, the employer decided that the zest legal department would not take further instructions from clients and would run down naturally to its eventual closure. This inevitably resulted in a redundancy situation for Ms Barlow and the process to consult upon her redundancy began in 2019.

She was advised during her first consultation meeting that hers was the only role at risk owing to her working for the zest legal department. However, she argued that she was not an employee of zest legal but rather of the solicitors’ firm in general and, as such, should have been placed in a pool with the other PAs.

She argued that to have decided the pool of one was to have reached a foregone conclusion as to the termination of her employment. While she accepted that a genuine redundancy situation had arisen at the firm, she argued that the redundancy process was procedurally unfair on the basis that her employer had placed her in a pool of one.

She was offered alternative roles in the firm but none she considered suitable. While the employer accepted that the other PAs at the firm all had similar skills and job descriptions, their knowledge of their respective departments, having worked under specific departmental heads, meant that Ms Barlow would not have the knowledge of the other departments. Also, placing the other PAs in the pool would have been disruptive and would have unnecessarily placed them at risk in the firm. The employer considered ‘bumping’ another PA from a pool of all the PAs but did not believe it was appropriate.

Ms Barlow’s employment came to an end by reason of redundancy and she claimed she had been unfairly dismissed by reason of her employer’s failure to widen the pool to include other PAs at the firm, which could have resulted in another PA having been made redundant instead of her.

The tribunal decision

The tribunal held that her dismissal was not unfair. The sole issue for the tribunal was to consider whether by not expanding the pool for selection for redundancy it had acted unreasonably and therefore unfairly.

The tribunal stated it was not its obligation to substitute its own view as to what it would have done in the circumstances but instead to consider whether the employer’s decision fell within the ‘range of reasonable responses’ open to it.

The law on bumping is that there may be, on the facts of a case, a duty to consider possible vacancies where none exist. However, there is not a legal obligation to ‘bump’ or consider ‘bumping’. The issue of bumping, having been raised by Ms Barlow during consultation and discounted as inappropriate by the employer, was sufficient to show the decision was within the range of reasonable responses and therefore rendered the dismissal fair.

Summary

While this case is only an employment tribunal case, it serves as a useful reminder of some of the legal principles that apply to redundancy dismissals.