Selection pools

Case 1: The facts

After he was made redundant, Mr Mercy brought claims for both unfair dismissal and a protective award resulting from a failure to consult.

His employer had consulted its Employee Consultation Council, but Mercy said it had not provided any information about the pools used to select staff for redundancy – a breach of its duties under section 188 of the Trade Union and Labour Relations (Consolidation) Act (TULRCA). His unfair dismissal claim was based on his being in the wrong selection pool.

The ruling

The Employment Appeal Tribunal (EAT) held that a failure to provide information for collective consultation falls under section 189(1)(b) of TULRCA, meaning that only employee representatives can bring a tribunal claim; individual employees can only claim later for non-payment of a protective award, so Mercy’s claim for breach of TULRCA could not proceed.

With regard to his unfair dismissal claim, the EAT reiterated that a tribunal’s role is to ask whether the employer acted within the band of reasonableness when carrying out its selection – not to re-mark the assessments. In this case, the tribunal’s finding could not stand because it had looked for evidence of “bad faith– when it should only have been looking at reasonableness.

The case was sent to a different tribunal for re-hearing.

Northgate HR Ltd v Mercy UKEAT/0446/06