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Can contract length be used as redundancy selection criteria?

Redundancy dismissal - Man packs box

Will Clift discusses the implications of the EAT’s decision in Mogane v Bradford Teaching Hospitals NHS Foundation Trust for employers carrying out redundancy consultations.

In the case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust, Ms Mogane and another nurse with a similar role (within the same NHS band) were employed by Bradford Teaching Hospitals NHS Foundation (the “Trust”) on fixed term contracts. Ms Mogane’s fixed term contract was due to expire before the other nurse’s contract came to an end.

Owing to its financial circumstances, the Trust determined that it required fewer nurses. Ms Mogane was invited to a consultation meeting and informed of the Trust’s financial position. Shortly after this meeting, the Trust decided that Ms Mogane should be made redundant because her contract was going to end first. The Trust was unable to identify an alternative role for Ms Mogane and she was dismissed.

Ms Mogane brought a claim for unfair dismissal in the Employment Tribunal.

Employment Tribunal decision

The Employment Tribunal dismissed Ms Mogane’s claim. It determined that it had been “in the band of reasonable responses” for the Trust to select Ms Mogane for redundancy on the basis that her contract was due to end sooner.

Ms Mogane appealed the decision on a number of grounds.

Employment Appeal Tribunal decision

The Employment Appeal Tribunal upheld Ms Mogane’s appeal and substituted a finding of unfair dismissal for a number of reasons, summarised as follows:

  • For a redundancy consultation to be fair and meaningful, it should take place at a formative stage, when the employee who is at risk of redundancy can still have an impact on the outcome. Any proposals that the employee makes should be taken into account before any final decisions are made by the employer.
  • In this case, the decision to use the nurses’ proximity to contract renewal as the sole selection criterion meant that Ms Mogane’s redundancy was inevitable.
  • Accordingly, the Trust’s actions in choosing this selection criterion before any consultation took place meant that there was no prospect of a fair or meaningful consultation, as Ms Mogane could not have influenced the outcome.
  • The selection of Ms Mogane for redundancy was arbitrary, as it related solely to when her contract would come to an end.

In making this decision, the EAT stated that, where the selection of particular redundancy criteria means that, in effect, one employee will automatically be selected over another (as was the case here), a consultation must take place before that decision is made.

Lessons for employers

Employers should bear in mind the following lessons from this case:

  • In the context of a redundancy, employers should not make any decisions which will inevitably lead to an employee’s selection without first consulting with the employee. Any such consultation should be carried out at a formative stage, when the employee can still have an influence on the outcome.
  • Any selection criteria used should not be arbitrary (as was the case here). Instead, employers should select fair and reasonable criteria which can be objectively justified.

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