In the case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeals Tribunal ruled that 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.
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.
The claimant was one of two band six level nurses employed by the trust. Both nurses were employed on fixed term contracts. The trust was in financial difficulty and a reduction in staff was required to reduce costs. As such, a potential redundancy situation arose.
The second nurse had been appointed on a two-year contract which, shortly before the commencement of the redundancy process, had been confirmed following the successful completion of a probationary period. The claimant had been employed since 2016 on a series of one-year contracts. The most recent of these contracts was due to expire prior to the expiry of the second nurse’s fixed term.
In March 2019, the claimant was invited to a meeting and informed about the financial difficulties of the trust. Soon afterwards, the trust decided that the sole criterion for selecting who would be made redundant was the length of time which was left on each of the nurse’s fixed-term contracts. This meant the claimant was selected as the one to be made redundant.
Importantly, the claimant was not consulted regarding the decision to use this criterion, which essentially meant that she would inevitably be selected for redundancy. Alternative roles were considered, but none were suitable, and so the claimant was made redundant.
The EAT held that the implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy.
The EAT therefore upheld the claimant’s appeal.
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