Fulcrum Pharma (Europe) Limited v Bonassera
The EAT upholds an Employment Tribunal's finding of unfair dismissal where the employer failed to consult the employee about the selection pool or consider the possibility of a wider selection pool in a redundancy situation.
Mrs Bonassera worked as the HR Manager for Fulcrum Pharma (UK) Limited (Fulcrum). She was assisted by Mrs Carter who was the HR Executive. On the 17th April 2009 the Chief Executive Officer (Dr Armstrong) informed Mrs Bonassera that her role as HR Manager was at risk of redundancy. On the 18th April 2009 Mrs Bonassera sent Dr Armstrong an email which stated that in her view, both herself and Mrs Carter should have been placed at risk of redundancy. In fact on the 20th April 2009 Mrs Carter was informed by Fulcrum that she was not at risk of redundancy.
Fulcrum never discussed the size of the selection pool with Mrs Bonassera during the consultation process. An Employment Tribunal upheld her claim that her dismissal for redundancy was unfair because Fulcrum had automatically decided that as only the HR Manager's role was redundant, the selection pool would only consist of Mrs Bonassera. Fulcrum appealed.
The EAT Decision:
The EAT upheld the Employment Tribunal's finding of unfair dismissal and agreed that Fulcrum was wrong to decide that the selection pool should only consist of Mrs Bonassera, without any further or meaningful consultation on the size of the pool. It also confirmed the factors an employer should consider in deciding whether or not junior employees should be included in the selection pool (with a view to 'bumping' the more senior employee whose position is redundant, into the junior employee's role).
An employer should first determine within the consultation process whether the more senior employee would be prepared to consider the more junior role at the reduced salary. The employer should then consider:-
- 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 at risk of redundancy.
- Any other factors applying to the particular case.
Employers who are making a senior position redundant, (perhaps as part of a restructure) should not automatically assume that the only person at risk of redundancy is the individual who holds that senior position.
This case confirms that employers should always start any redundancy process by considering the correct size of the selection pool and take into account the views of any potential 'at risk' employees in determining the size of the pool. Employers in such situations should also consider whether 'bumping' the more senior employee into a junior role would be appropriate and reasonable.