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Selection pool of one was fair

Posted on 25th March 2012
HR practice

This case reassures employers that, provided they have 'genuinely applied' their mind to the issue of which employees should be in the pool, the decision should not be capable of challenge.

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Julie Temple Julie
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Halpin v Sandpiper Books Ltd UKEAT/071/11

Background

The EAT has confirmed that the identification of employees to be included in the selection pool and the selection criteria to be used are decisions for the employer and are ones that the employment tribunal should avoid interfering with. This case provides reassurance to employers that, provided they have 'genuinely applied' their mind to the issue of which employees should be in the pool, the decision should not be capable of challenge.

In the above case Mr H worked for the respondent company and was posted to China. He was the only employee who worked in China and his old UK based duties had been reallocated to other staff. The respondent outsourced the work carried out by Mr H to a local Chinese company. This resulted in Mr H being dismissed for reason of redundancy. He claimed he had been unfairly dismissed.

The decision

The EAT upheld the employment tribunal's decision that the dismissal was fair. The dismissal was fair because the respondent had correctly considered who should be included in the selection pool. In this case it was reasonable and justified to have a selection pool of one because Mr H was the only employee directly affected by the outsourcing decision. Mr H failed in his argument that the respondent should have created a selection pool made up of employees who had interchangeable skills.

The respondent had carried out genuine and meaningful consultation with Mr H and had offered him alternative employment (albeit unsuitable).
The EAT confirmed that the respondent was under no obligation in this case to consider 'bumping' another employee out of his or her job to avoid Mr H's dismissal for redundancy. (Sometimes, however, it will be reasonable for an employer to consider bumping.)

In practice

Mr H's case is a classic example of where a selection pool of one was justified. It was still essential for the respondent to consult with Mr H and discuss with him their reasons why they judged it was not appropriate to widen the selection pool or to dismiss (bump) another employee to save Mr H's employment.

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