In Capita Hartshead Ltd v Byard, the EAT upheld a Tribunal decision that a dismissal following selection for redundancy from a pool of one was unfair.

As only one of four pension scheme actuaries did not have enough work, the employer decided that only she needed to be in the redundancy selection pool.  It did not want to spread work between actuaries because of the risk that the personal nature of the client contact would lead to the loss of clients.

Upholding the Tribunal's decision, 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.  The general principles in these cases are:

  • the question is whether the dismissals were a "reasonable response"; the Tribunal should not be looking to decide whether it would be fairer to act in some other way
  • 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, but not impossible, for an employee to challenge it.

In this case, the correct conclusion was that the employer had not genuinely applied its mind to the issue.  The three other actuaries did similar work and the chance of losing business if scheme actuaries were changed was slight.