Redundancy selection and the "Pool of One": is it always cut and dried?
Posted on 25th May 2023 at 13:49
Let’s take the redundancy situation as read. In turn, let’s take the need for the headcount reduction as undeniable. Let’s finally identify the single employee in the role that’s to be cut out, and give him a full month’s notice straight away. Everyone knows that economic decisions are for the employer alone. Will it matter that consultation was bypassed?
The Employment Appeal Tribunal decided in Teixeira v Zaika Restaurant that it very much did matter. He was unfairly dismissed. Had Mr Teixeira been warned and consulted, rather than given a month’s notice by phone in fait accompli fashion, he could have objected to the “Pool of One” into which he was placed. It might have been widened. Even if it had been reasonably explained that there was no need to do so, and identify selection criteria, the date of dismissal might have been delayed.
The case was sent back to the original tribunal to determine what compensation, if any, would be payable. The action had already taken two days in the tribunal, as well as a day in the EAT when both parties were represented by solicitors and Counsel.
Mr Teixeira’s legal claim, resulting in an unfair dismissal finding, had been vindicated. Any losses were a different matter. Should he have found new comparable employment immediately after his last day of work, and suffered no loss, there may have been none. The trip to the EAT may have been a Pyrrhic victory.
Either way, the costs outlay for the employer on this occasion will have been considerable, alongside the time spent. Granted, there were evidently principles at stake in the tribunal, extending to complications over unpaid redundancy pay and erroneous furlough payments. The employers represented themselves before the tribunal, losing two days’ worth of productive time in the process, and then put a legal team on the appeal.
Was it worth it? What might they have saved via timely legal advice as to the wisdom of offering consultation, even in a “Pool of One” situation? Potentially, quite a lot.
Not sure how best to handle a redundancy dismissal? Get in touch. Contact David Cooper via dmc@coxcooper.co.uk or via 0212 325 5402.
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