Can the sole criterion for selection for redundancy be the date of when a fixed term contract is due to end?

This was the question that was before the Employment Appeal Tribunal [EAT] in Mogane v Bradford Teaching Hospitals NHS Foundation Trust and another [2023] IRLR 44.

Background:

The NHS Trust was faced with a redundancy situation due to financial constraints. They had two nurses on fixed term contracts, the claimant and one other. The claimant had been subject to a series of fixed term contracts with the most recent due to end prior to the other nurse’s fixed term contract. It was decided that the claimant should be made redundant as her fixed term contract was due to expire first. The claimant’s contract was extended to enable consultation to take place but her employment was ultimately ended on the grounds of redundancy.

 

Determination of Employment Tribunal and Employment Appeal Tribunal [EAT]:

The claimant raised a claim of unfair dismissal by reason of redundancy.

The Employment Tribunal ruled that, in the circumstances when all relevant employees are on short-term contracts, it was within the band of reasonable responses for the employer to make a decision, based upon which employee’s fixed term contract was due to end first, at a time of perceived economic difficulties which resulted in a redundancy situation.

The Claimant appealed on the grounds, amongst other matters, that there was no genuine consultation and no consideration given to whether the other nurse should have been within a redundancy pool for selection alongside the claimant.

The EAT agreed with the claimant and held that she had been unfairly dismissed. Applying the long-established principles established in Williams v Compare Maxam Ltd, the EAT held, amongst other matters, that the consultation had not been meaningful and genuine.  “That must mean that consultation, for a process to be fair, should occur at a stage when what an employee advances at that consultation can be considered and has the potential to affect the outcome.” In this case, the EAT held that once the Employer had decided that the employee whose contract was up for renewal first should be dismissed consultation was of no practical purpose and therefore flawed, “the consultation was not at the stage where the claimant could influence or potentially affect the outcome.”