Halpin v Sandpiper Books Ltd [2012] UKEAT 0171_11_0602

This case concerns unfair selection for redundancy. Mr Halpin was employed by Sandpiper Books Ltd. After a period working in its London office, he was promoted to work as the sole representative of Sandpiper in China. After a decision was taken to outsource the sales work to a local agency, Mr Halpin was made redundant. He brought a claim for unfair dismissal but the tribunal held that he had been fairly selected for redundancy “insofar as he was in a pool of one given his unique position dealing with sales and based in China”.

Mr Halpin appealed, arguing that no reasonable employer would limit the pool to those workers whose work had diminished or would exclude those with interchangeable skills. In dismissing the appeal, the EAT upheld the tribunal's approach. The decision by Sandpiper to put Mr Halpin in a pool of one was logical and one that a tribunal could not easily overturn. Mr Halpin was the only employee in China. The fact that he had previously done administrative duties that were still done by others in the UK did not mean that he was not at risk of redundancy, and he was the sole person within the management decision that the China job should cease. Decisions as to pools and criteria are matters for management and an Employment Tribunal will rarely interfere with them.

What are the practical implications for employers?

Except in very clear-cut cases where an employee is doing a unique job, employers should always consider whether a pool should be drawn up. Failure to do so is likely to result in an Unfair Dismissal.

Whilst there are no hard and fast rules governing the composition of a pool, an employer should, first of all, define what type of work is ceasing or diminishing and then consider the following questions:

• Which employees do the same or similar work?
• Are there any roles where skills are interchangeable?
• Should the net be broadened to include similar jobs at other sites?
• Does fairness require that a potentially redundant employee should displace another employee with similar skills whose work is not diminishing but who is more junior and/or has less service?
• Does the selection pool need to be discussed or agreed with union or employee representatives?

The key point is that employers must carefully document their decisions and their underlying reasoning in pooling issues. This makes it difficult for an employee to challenge the choice of pool although an employer will be at greater risk of a finding of unfair selection if it defines a pool that is the same size as the number of roles to be made redundant. Employers should therefore only adopt this approach if there are good reasons for doing so.

Read the full Employment Appeals Tribunal decision here.