Mogane v Bradford Teaching Hospitals NHS Foundation Trust & Anor [2022] EAT 139

Appeal against a decision that the Claimant had not been unfairly dismissed. Appeal allowed.

The Claimant had been invited to a meeting at which she was told of the financial strictures faced by the Respondent. Shortly after that, the decision-maker concluded that the Claimant should be made redundant as her contract was the one that was due to be renewed soonest. A further meeting was intended for 8 May 2019; that meeting did not go ahead. On 13 May 2019, the Claimant was invited to a meeting to consider the renewal of her contract which was due to expire on 1 June 2019. A meeting was scheduled for 5 June 2019, after the expiry date of that contract. There was an extension of the contract to 1 September to facilitate consultation. The Claimant went off ill on 30 May 2019 and she never returned to work thereafter. Instead of a meeting being held on 5 June, it was held on 12 June 2019. By that stage, on the EAT's reading of the ET’s Judgment, the decision-maker had already concluded that the Claimant would be redundant from her job within that department. The remainder of the process related to an attempt to find alternative employment. This meant that the Claimant’s contract of employment was further extended to 31 December 2019 and it was at that date it was terminated. The Claimant had been offered a Band 5 nurse position but she did not take that up because it was a lower band and because she did not have the particular qualification required for the post. The ET decided that she was reasonable in not taking up that appointment. However, the ET found that she had not been unfairly dismissed and the Claimant appealed.

The EAT allowed the appeal. The ET had overlooked aspects of the issue of consultation in its deliberations, conflating consultation on alternative employment with the broader consultation required in a redundancy situation. Consultation is a fundamental aspect of a fair procedure. This aspect applies equally, with appropriate adaptation, to redundancy situations where there is no collective representation. In order that consultation is “genuine and meaningful” a fair procedure requires that consultation takes place at a stage when an employee or employee representative can still, potentially, influence the outcome. In circumstances, as here, where the choice of criteria adopted to select for redundancy has the practical result that the selection is made by that decision itself, consultation should take place prior to that decision being made. It is not within the band of reasonable responses, in the absence of consultation, to adopt one criterion which simultaneously decides the pool of employees and which employee is to be dismissed. The implied term of trust and confidence requires that employers will not act arbitrarily towards employees in the methods of selection for redundancy. Whilst a pool of one can be fair in appropriate circumstances, it should not be considered, without prior consultation, where there is more than one employee.

Published: 28/11/2022 16:22

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