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Is a pool of one really just cherry-picking?

There is one line of case law which suggests that having a pool of one may not be a fair way of conducting a redundancy process in particular as it affects whether or not consultation can be meaningful.

Luckily the recent case of Wrexham Golf Club Co Ltd v Ingham gave the EAT the chance to remind us of the principles that a tribunal should look at in such a situation:

  • It is not for the tribunal to say that the pool could have been decided in fairer way – this comes back to the established principle that the tribunal cannot substitute its own decision for that of the employer;
  • Is the decision to have a pool of one “within the range of reasonable responses open to an employer” – as long as a reasonable employer could have decided on a pool of one, then that will satisfy this test;
  • The pool does not need to be limited to employees doing the same or similar work.  An employer can look across its business to decide whether certain groups of employees should be pooled together; 
  • The question of what the pool looks like is one for the employer to decide, and provided the employer has “genuinely applied his mind” to it, then it will be difficult to challenge.

This is just like a school maths question: show your workings out and you will get more marks!

Remember: Tribunals love contemporaneous documents so if you have minutes of meetings where you sat and thought about the pool, or emails back and forth on the topic, then provided your decision is what a reasonable employer might do, you will be able to demonstrate that you followed the right process. Go a step further and talk your thought process through with the employee, and you will probably get even more marks. 

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