Part of the fair process involves identifying an appropriate selection pool – the group of employees from which the selection will be made.

In the case of Valimulla v Al-Khair Foundation [2023], the Employment Appeal Tribunal (EAT) provided some guidance when selecting a pool.

The facts

The claimant’s role involved raising funds for the employer, a faith based charitable organisation. He was based in the North West of England and shared the role with 4 others who were based in other locations around the UK. The charity closed some of its regional branches and made some redundancies placing the claimant in a pool of 1 before dismissing him by reason of redundancy. His claim for unfair dismissal failed at the original tribunal and he appealed to the EAT.

EAT decision

The EAT decided that whilst there was a genuine case of redundancy, the original tribunal had failed to consider whether the:

• selection process was fair
• employer had put their mind to the selection process
• pool selected came within the range of reasonable responses open to a reasonable employer

As the claimant shared the role with 4 others around the country, there was no explanation why he had been placed in a pool of 1. The case was remitted back to the tribunal to consider this further. The EAT also decided no meaningful consultation had taken place.

Takeaway points

Whilst an employer has discretion when deciding on the selection pool, there should be some evidence to justify the selection. Even with a pool of 1, during consultation the employee chosen will likely ask the question “why me?” Where the employee shares the role with other staff or even helps out in other areas of the business, the employer should consider whether the other staff need to be included in the selection pool.

One useful way of approaching the question of a selection pool is, instead of asking who should be in the pool, include everyone who does the same or similar role or shares duties with the employees and then look for reasons to take staff out of the pool. These reasons should be documented and can provide some evidence you have applied your mind to the selection process.