Redundancy: Who goes in the pool?
In Fulcrum Pharma (Europe) Ltd v Bonassera and another, the EAT confirmed that, when deciding who should go in the pool of potentially redundant employees, there are circumstances when it will be appropriate to include not just those employees who are performing the redundant role but also more junior employees as well.
Fulcrum wished to remove the HR Manager role from its function, but not the more junior executive role. As they did not consult with the employees in respect of the pool and excluded the junior employee from the redundancy pool, the dismissal was determined to be unfair.
The EAT found that the following factors should be considered:
- Whether or not there is a vacancy;
- How different the two jobs are;
- The difference in remuneration between them;
- The relative length of service of the two employees;
- The qualifications of the employee in danger of redundancy; and
- Any other factors applying to the particular case.
In some instances it will be concluded that it is not appropriate to include other employees in the pool. If this is the case, then the employer will need to show clear evidence that they have considered the above and importantly, consulted with the affected employees on this basis as to whether the more junior role would be acceptable to the more senior employee.
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