Deciding on the selection pool

The first step in any redundancy selection process is usually to decide on the selection pool — the group of employees from whom redundancies are to be made. This should be a matter for consultation.

The law gives the employer a great deal of freedom to decide the selection pool and a challenge to the fairness of a dismissal on this basis is likely to be very difficult. All the employer must show is that they have:

• thought carefully about who should be in the pool (Fulcrum Pharma v Bonassera [2010] UKEAT/0198/10);

• not discriminated, or acted unlawfully in some other way, for example, by targeting trade union reps; and

• used a pool that was not so unreasonable that no reasonable employer would have chosen it (Capita Hartshead Limited v Byard [2012] UKEAT 0445/11).

The law does not stop an employer using a pool of just one person if that person’s job is genuinely the only job at risk. Everything depends on the facts of the particular case.

A wish to avoid demoralising or worrying other employees by including them in the pool is never a fair reason for limiting the pool.

The pool does not have to include only those employees who are doing the particular kind of work that has reduced, especially if roles are interchangeable. Indeed, restricting the pool in this way might make the dismissals unfair (Hendy Banks City Print Limited v Fairbrother [2004] UKEAT 0691/04/2112). A decision to include every single member of staff in the pool even though they all had different skills was described by the EAT in Contract Bottling Limited v Cave [2013] UKEAT/0525/12/DMA, as “rather surprising” and unusual, but it was not unfair. There is an overlap here with the practice of “bumping” described on page 319.