No, an employer cannot use a selection pool of one

Case 4: The facts

Capita Hartsmead employed four actuaries, and needed to make one redundancy because of a fall in work. Many of the pension schemes administered by the claimant, Ms Byard, had been closed, or the clients had been lost. Instead of placing all four actuaries in a pool and choosing between them, the employer placed Byard in a “pool of one”, arguing that it was important not to disturb its existing client relationships.

The tribunal examined the evidence, concluding that the risk of losing clients by changing actuaries was in fact “slight”, and that the employer’s decision to limit the pool to one employee made this dismissal unfair. That decision was particularly disadvantageous to Byard because it undermined the purpose of consultation by making it difficult for her to argue that someone else “at risk” should have been selected in her place. The employer appealed.

The ruling

The Employment Appeal Tribunal (EAT) agreed that the dismissal was unfair. Although the question of who should be in the pool is primarily a matter for the employer, a challenge to that decision, while difficult, is not impossible, even if an employer can show it has “applied its mind” to the question of who should be in the pool.

Capita Hartshead Limited v Byard [2012] UKEAT 0445/11