UK: Redundancy - selection pool can be challenged

Employers should take extra care when deciding whether a selection pool of one is appropriate. The EAT has confirmed that, where the employer has genuinely applied its mind to the issue, it is difficult but not impossible for an employee to challenge a selection pool as unfair.

Tribunals will scrutinise more closely the use of a selection pool that is the same size as the number of roles to be made redundant, so employers will need to have strong reasons for not using a wider pool.

In Capita Hartshead v Byard the employer employed four actuaries but the selection pool only included the actuary whose clients had defected, on the grounds that there was a risk of losing more clients if they were transferred between actuaries.  The EAT upheld the ET's ruling that the selection pool of one was unfair, given that the risk of client departure was slight, the other actuaries did similar work and the claimant's work had been praised.  Employers should take care not to exaggerate the commercial risks in selecting from a wider pool.

In contrast, in Halpin v Sandpiper Books the EAT ruled that it was not unfair to use a selection pool of just one employee (and not consider bumping) when it was ceasing its operations in China and the claimant was the only individual employed in China.

Another recent EAT decision has confirmed that, when considering an employee at risk of redundancy for suitable alternative employment, an employer can use subjective criteria in the interview process and has considerable flexibility when assessing their suitability for the role.  It was reasonable for the employer to decide not to use past performance appraisals as part of the process, given the different nature of the new role. (Samsung Electronics (UK) Ltd v Monte-D'Cruz)