The next step

Selection criteria

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Blackdown Hill Management Limited and another v Tuchkova

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Failure to consider selection pool made redundancy unfair

Failure to consider selection pool

In Blackdown Hill Management Ltd and another v Tuchkova 2023 , Ms Tuchkova (T) was employed as a legal project manager. Although she was the only person in the office with a legal qualification, in practice she carried out a variety of tasks which included project management and administration. When she was absent on maternity leave, her work was divided between five colleagues. Shortly after her return from that leave, due to the winding down of various business activities with which T had been involved and which resulted in a reduction in her work, her role was selected for redundancy and she was then made redundant. She brought an unfair dismissal claim.

The employment tribunal held that, whilst there was a genuine redundancy situation and so T was dismissed for the fair reason of redundancy, her dismissal was nevertheless unfair because her employer (BHML) had failed to properly assess the situation in concluding that T’s role was unique and had disappeared. In particular, it had failed to fairly consider whether T should be placed in a pool of one for selection purposes or in a wider selection pool. BHML appealed.

Unfair dismissal ruling upheld

The Employment Appeal Tribunal (EAT) has now upheld the tribunal’s ruling and agreed that BHML didn’t carry out a fair selection process by simply placing T in a pool of one (see The next step ).

BHML should have considered whether to place T in a selection pool with some or all of the five workers who had covered her role in her absence. Whilst the work carried out by T had reduced, it would have been reasonable for BHML to have conducted a wider analysis of who was doing what in the office and the extent to which T’s role had been absorbed.

The EAT pointed out that even where a job role appears to be uniquely at risk, it doesn’t necessarily follow that it will be fair to place only the employee occupying that role in a pool of one.

Can you have a selection pool of one?

This ruling isn’t saying that it would necessarily have been wrong for BHML to have arrived at a selection pool of one. In fact, the unfairness lay in the fact that it had failed to adequately consider the selection pool in the first place and had just proceeded with redundancy on the basis of a pool of one. So, you can still have a pool of one in appropriate circumstances, provided you’ve properly arrived at that decision.

Tip. When starting a redundancy process, always give sufficient consideration to both the pool for selection and the selection criteria you intend to adopt (see The next step ). If you fail to do so, your redundancy process may be unfair, even if you have a genuine reason for redundancy. In deciding on your pool, consider not only employees’ job descriptions but also what duties and functions they perform in practice.

Tip. You do have a degree of discretion to decide on both your selection pool and your selection criteria but be prepared to justify your decision on these matters.

For the EAT’s ruling in this case and sample selection criteria, visit https://www.tips-and-advice.co.uk , Download Zone, year 26, issue 6.