The claimant in Family Mosaic Housing Association v Badmos was one of two regional development managers (RDMs) in the Delivery department of a housing association.  There were another three RDMs in the New Business department.  In 2009, following the economic downturn, the employer embarked on a restructuring.  One RDM post was to go, leaving two for each of the two departments.  Although Delivery was not losing any RDMs, all five RDMs were pooled together for the remaining four posts and were asked to express preferences.  Two of the RDMs applied for and got the two remaining posts in New Business.  The claimant, who was one of the three applicants for the two continuing Delivery posts, scored the lowest in the ensuing selection exercise and was dismissed for redundancy.

The Tribunal decided that the employer's decision to pool all five jobs together made the selection unfair.  It also considered that other aspects of the process were unfair, including the involvement of one manager throughout; the unexplained scoring exercise and the unreasonable conduct of the appeal.

The EAT confirmed that the employer's decision on the redundancy selection pool is open to scrutiny, even though it is primarily a matter for the employer to determine, but focused on two key principles established in earlier cases:

  • there is no rule that a pool must be limited to employees doing the same or similar work

  • if the employer has "genuinely applied his mind" to the issue of who should be in the pool, it will be difficult (although not impossible) for an employee to challenge it.

The EAT decided that putting all five RDMs into the pool and subsequently separating out the roles in that pool when the New Business roles were filled, effectively creating a second pool for selection, was not unfair.  The existing RDMs had interchangeable skills and all five were competent to do either job.  At the same time, it was also appropriate to allow them to express a preference as between the posts.  In other words, this was an entirely normal process which was within the range of reasonable responses of an employer in these circumstances and the employer had "genuinely applied its mind" to the problem.  The fact that the claimant went into the process blind as to the preferences of his colleagues was just one element of a normal competitive assessment.  In finding that the selection pool was unfair the Tribunal had wrongly substituted its own view for that of the employer.

However, the findings on the unfairness of the selection process itself were valid and as a result the EAT did not overturn the Tribunal's decision.