But employment law requires a sophisticated ‘objective’ process to identify the jobs to go. The employer must first choose a reasonable pool from which the redundant jobs are to be selected; define and apply ‘objective’ selection criteria to identify the jobs to go; consult those affected; and explore alternative employment for prospective leavers.
So it is very convenient if the leaver-to-be is a pool of one, because no further selection process is necessary. Two recent Employment Appeal Tribunal decisions illustrate the boundaries of an employer’s discretion in choosing a pool of one.
In Halpin v Sandpiper Books EAT 6.2.12 (0171/11), the employer had one salesman in China and decided to close the China office, making him redundant. Mr Halpin argued that other London employees with interchangeable skills should have been in the pool with him. The EAT disagreed, holding that limiting the pool to one was a logical decision.
In Capita Hartshead v Byard EAT 20.2.12 (0445/11), Mrs Byard’s work as an actuary had reduced. The workload of her actuarial colleagues had barely diminished. So Mrs Byard was placed in a pool of one and made redundant. The employer argued it might lose clients if the actuary changed.
The EAT summarised the principles as follows:
· The ‘reasonable response’ test applies to selection of the pool: is the selection within the band of reasonable responses?
· The employer must ‘genuinely’ apply his mind to the question of who should be in the pool
· There is no legal requirement that the pool should be limited to employees doing similar work [Taymech v Ryan EAT 15.11.94 (663/94)]
Here the employer’s choice of a pool of one was unfair, because it did not genuinely apply its mind to the issue of who should be included in the redundancy pool. Two other actuaries at the same location should have been included.