Posted: Thursday 4 November 2010
Dismissal Unfair Because Employer Did Not Consult Properly On The Pool
In the past few years there has been a raised awareness amongst employers that when carrying out a redundancy process it may be considered to be unfair if the employer fails to consider making a more junior employee redundant with the employee at risk of redundancy instead doing the more junior employee’s role (albeit at the going rate of salary for the lesser role). The previous case law on this was that a dismissal may be unfair if the employer fails to consider this. However, the case of Fulcrum Pharma (Europe) Limited v Bonassera appears to go further and suggests that an employer should specifically raise this possibility with the employee at risk.
I am not totally convinced that the legal analysis given in the decision is entirely correct and the Employment Appeal Tribunal may be getting the concept of bumping and correctly identifying the redundancy pool confused (albeit there is, potentially, a degree of overlap).
In any event, employers though should be live to this decision and, until further clarity is obtained from the Courts, when considering how to fix the redundancy pool should:-
- specifically consider whether the pool should be broadened to include more junior employees where the more senior employee at risk of redundancy could carry out them more junior role;
- specially raise this possibility during the consultation process with the more senior employee to obtain their views as to whether they would be interested in a more junior role prior to taking a final decision on the composition of the redundancy pool.
