Redundancy Selection Criteria

Mogane v Bradford Teaching Hospitals NHS Foundation Trust

It is well established that employers must consult employees prior to dismissing them for redundancy.  Where adequate consultation does not take place then employees with over two years’ service can bring an unfair dismissal claim.  In Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal (EAT) reminded employers of the importance of consultation.  


In the case, the Trust (the employer) had to make redundancies.  The Trust decided that the sole criterion for selection for redundancy (adopted without any prior consultation with the employees) was that Ms. Mogane’s fixed-term contract was due to be renewed before that of her colleague.  The employee was invited to a meeting and told that the Trust faced financial difficulties and was told of the criteria that it had chosen (the expiry of her fixed term contract being the soonest).  The remainder of the redundancy process was an attempt to find her alternative employment.

Ms. Mogane challenged the decision of the employer claiming unfair dismissal.  The original Employment Tribunal rejected her claim and it found that she had been fairly selected for redundancy.  She appealed to the EAT.

The EAT allowed the appeal and went back to perhaps the most well-known cases in redundancy law in the UK, Williams & Ors v Compair Maxam Ltd, 1982 and Polkey v AE Dayton Services (Ltd), 1988, which made clear that consultation is not just an optional part of redundancy selection criteria but is fundamental to fairness.  

It held that consultation had to be genuine and meaningful and importantly has to take place at a stage where an employee or the employee’s representative can still potentially influence the outcome.  

On the facts here, it found that there was no such consultation and no ability for the employee to affect the selection pool.  It also found the employer, on the facts, had failed to explain why it was reasonable to make that decision without consultation.  Unusually (because the EAT often sends matters back down to the Tribunal to decide again on the facts), the EAT substituted its own finding, that Ms. Mogane was unfairly dismissed for redundancy.


The case is a reminder to employers that even where choice of selection criteria seems obvious and commercially in the best interests of the employer, potential criteria and pooling should be discussed with employees before any final decisions on the criteria are made by the employer.