Redundancy selection criteria and fixed term contracts

A recent case at the Employment Appeal Tribunal (EAT) has found that an Employment Tribunal (ET) erred in its judgement that a Claimant, who was selected for redundancy solely on the basis that her fixed-term contract was due to expire the earliest (of those employed on such contracts), was fairly dismissed.

Ms Mogane was employed by Bradford Teaching Hospitals NHS Foundation Trust on a series of fixed-term contracts as a band 6 Nurse.  She worked for a research unit alongside another Band 6 nurse who was also employed on a similar basis of successive fixed-term contracts.

Three years into her employment with the Trust, Ms Mogane was invited to a meeting and informed that the research unit was operating at a loss and that, as her fixed-term contract was due to be renewed the soonest, she had been selected for redundancy.  This was the only criterion applied by the Trust when deciding which employee was to be made redundant and as a result, Ms Mogane’s employment was terminated in December 2019.

Ms Mogane brought proceedings in the ET, which found that the dismissal for reason of redundancy based on the expiry of the fixed-term contract was both fair and within the range of reasonable responses open to an employer.  Ms Mogane appealed to the EAT.

Overturning the decision of the ET, the EAT found that Ms Mogane had been unfairly dismissed.  The EAT considered that, when making redundancies, a fair procedure could only be said to have been followed if meaningful consultation had taken place during which an employee can have input into the decision and potentially change the outcome.  If it is the case that it is clear from the selection criteria who will be made redundant (as in this case), then redundancy consultation should occur before the final decision to dismiss is made, thereby giving the employee the opportunity to provide input.  It is not enough in these circumstances to consult the employee after the criteria has been applied and the decision made.

The case serves as a reminder that employers need to adopt fair selection criteria when seeking to make redundancies.  If employers choose to rely on only one criterion which automatically determines which employee will made redundant, a formal consultation process should be conducted before any decision is made.

If you have any questions on how to apply a fair selection criterion in a redundancy process, please call our Employment Law team today on 0113 207 0000.