An outside candidate was eventually appointed. The employment tribunal found the dismissal unfair because of inadequate consultation and because the criteria for selection for the new roles were too "subjective". The EAT reversed the tribunal. As to the quality of consultation, the tribunal had erred by substituting its own view for that of the employer. As to the arrangements regarding suitable alternative employment, a tribunal should certainly consider how far an interview process was objective. But although, said the EAT, "subjectivity" in redundancy cases was often seen as a "dirty word", where a post has disappeared and the employer was selecting for a new role, some subjectivity was inevitable. The tribunal should bear in mind the views of the EAT in Morgan v Welsh Rugby Union [2011] IRLR 376 that "an employer's assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment" (per Judge Richardson). 1 March 2012 When should an employment tribunal interfere with the pool for selection chosen by the Employer? Rarely, says the EAT (HHJ McMullen QC) in Halpin v Sandpiper Books . Daniel Barnett’s Employment Law Bulletin reports: Sandpiper Brooks employed Mr Halpin in its London office as an Administrator/Analyst. Mr Halpin moved to work in a sales role in China. In due course the Company decided to outsource the sales work and Mr Halpin was put at risk of redundancy. There was extensive consultation and he was offered (but refused) alternative employment back in the UK. Mr Halpin was dismissed by reason of redundancy and brought a claim for unfair dismissal. The claim was dismissed. The tribunal concluded that Mr Halpin had been fairly selected for redundancy "in so far as he was in a pool of one given his unique position dealing solely with sales and based in China". The EAT upheld the tribunal's approach. The decision by the Respondent to limit the pool to a pool of one was open to it; such a decision cannot be easily overturned. "Selection only operates, when fairness is concerned, where there is a number of similarly qualified possible targets for redundancy" (paragraph 16) there was no other "similarly qualified possible targets". The decision as to the pool is one for management (Fulcrum Pharma v Bonassera [2010] UKEAT/0198/10/DM). In the circumstances the decision was one that was reasonably open to the Employer. 13 March 2012 The employees in this case were room assistants at a hotel. Their contracts expressly stated that overtime was voluntary, but provided that if they were asked to work overtime at short notice, this should be complied with. Pinsent Masons reports: The employees contended that they were required to clean 15 rooms per day and that this was not manageable, unless they took only a half hour break, as opposed to the hour they were entitled to. The employer’s position was that if they were unable to complete the 15 REDUNDANCY AND POOL OF ONE EMPLOYEES NOT ENTITLED TO PAYMENT FOR OVERTIME
CIPP Policy News Journal
09/10/2012, Page 68 of 234
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