No matter the number of redundancies planned, it is crucial for employers to engage in a consultation process. This is a central part of ensuring any redundancy dismissal is fair. This requirement holds true even in situations where there is only one individual at risk of redundancy. The recent case of Valimulla v. Al-Khair Foundation (2023) underscores the necessity for employers to thoughtfully consider the issue of pooling and to exhibit reasonableness in their decision-making process.
Background
Mr Valimulla (the Claimant) worked as a Masjid Liaison Officer (MLO) in the North West of England for the Al-Khair Foundation, a faith-based charitable organisation. Three other employees held MLO roles in different geographical areas. The role of an MLO involved fundraising in the community, such as through schools and mosques. During the Covid-19 pandemic, there was reduced work for MLOs due to the closure of schools and places of worship, and Mr Valimulla was placed on furlough along with the other MLOs. In June and August 2020, there were discussions about potential redundancies. Mr Valimulla’s role was one of four identified as being at risk of redundancy. Three consultation meetings took place, following which the Foundation dismissed Mr Valimulla as redundant. He lodged a claim of unfair dismissal.
Employment Tribunal decision
The Employment Tribunal (ET) found that there was a genuine redundancy situation and that Mr Valimulla had been fairly dismissed. The judge determined that the dismissal process was not so flawed as to make the termination of employment unfair. The ET agreed with the Foundation’s argument that Mr Valimulla’s position was “unique”, leading to him being in a self-selecting pool of one.
Employment Appeal Tribunal decision
Mr Valimulla appealed to the Employment Appeal Tribunal (EAT). There were two key grounds of appeal: (i) the ET made insufficient findings of fact on the issue of redundancy pooling; and (ii) it failed to consider a material issue, namely his complaint that he was not consulted in relation to being placed in a pool of one.
The EAT allowed Mr Valimulla’s appeal. The ET appeared to have accepted that Mr Valimulla’s role was unique, despite the fact others performed the same role in different locations, and it did not appear to have considered whether the Foundation had genuinely turned its mind to the selection process. It was not clear whether the Foundation had a reduced requirement for an MLO in the geographical area in which Mr Valimulla worked or whether it had a reduced requirement for MLOs across the organisation.
The EAT emphasised the importance of meaningful consultation and found there was a lack of consultation regarding the question of pooling, which was a key issue in this case. As a result, the EAT substituted a finding of unfair dismissal on procedural grounds.
Comment
This case reiterates the importance of consultation to a fair redundancy process. The EAT emphasised that, to be meaningful, consultation must take place at a time where it can potentially make a difference and be carried out in such a way that responses are considered and reflected upon prior to a decision being made.
The EAT adopted similar reasoning to its judgment in De Banks Haycocks v. ADP RPO UK Ltd (2023) where it emphasised the importance of “general workforce consultation”. For a more detailed overview of this case, read our blog here.
It is clear from these decisions that tribunals (and particularly the EAT) are scrutinising the extent, nature and timing of redundancy consultation more closely than ever. If an employer is contemplating redundancies, it should factor this into its process planning and ensure that it consults in respect of its proposed approach to pooling and selection before making any final decisions.
